Exhibit 10.10


 


 


Confirmation
re Closing Documents


 


June
6, 2003


 


 


To:          Silicon Valley Bank


Ladies
and Gentlemen:


Concurrently, we are signing and submitting to
you a Loan and Security Agreement (the “Loan Agreement”), and we and our
affiliates are signing and submitting to you other related documents and
agreements (with the Loan Agreement, collectively, the “Loan Documents”).


In order to save time in the closing process,
your attorneys have sent the signature copies of the Loan Documents to us by
email, and we then printed them and had them signed.


This will confirm that we have not made any
changes in any of the Loan Documents and that they were signed as they were
submitted to us.


Sincerely,


	
   

  	
  Unify Corporation   
  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ Peter DiCorti

  
	
   

  	
  Name:

  	
  Peter DiCorti 

  
	
   

  	
  Title: 

  	
  Chief Financial Officer

  
					



 


 


 


 

















 


Silicon Valley Bank


Loan and Security Agreement


 


	
  Borrower:

  	
  Unify Corporation

  	
   

  
	
  Address:

  	
  2101 Arena Blvd., Suite 100

  	
   

  
	
   

  	
  Sacramento, California 
  95834

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  June 6, 2003

  	
   

  



 


 


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.


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 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 


 


1

















 


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.


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 $25,000 fair market
value of Equipment is located.


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 the interests of Silicon and the Collateral
against all claims of others.  


 


2

















 


(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.


(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.


3.10 
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 


 


3

















 


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.


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.  
If the Streamline Period is in effect, Borrower shall nevertheless
continue to remit to Silicon all payments on, and proceeds of, Accounts as
provided above and, if a lockbox account or other blocked account has been
established, Borrower shall continue to cause all such payments and proceeds to
be deposited into said lockbox account or other blocked account, but, if the
Steamline Period is in effect and no Default or Event of Default has occurred
and is continuing, Silicon shall, promptly after receipt of such payments and
proceeds in immediately available funds, deposit the same into a Deposit
Account of Borrower maintained at Silicon, rather than applying the same to the
Obligations.


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 following 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 $25,000 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.


4.6 
Disputes.  Borrower shall notify Silicon promptly of all disputes or claims
relating to Accounts on the regular reports provided to Silicon.  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 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 con-


 


4

















 


tinuing;
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.


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
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 


 


5

















 


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) engage, directly or indirectly, in any business other than
the businesses currently engaged in by Borrower or reasonably related thereto;
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.  


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 one percent (1.0%) of the Maximum Credit
Limit, 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.


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 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 (including without limitation
the reporting obligations in Section 4.3 of this Agreement and Section 6  of the Schedule), which failure is not cured
within five Business Days after the date due; or (f) any levy, assessment, attachment,
seizure, lien or encumbrance (other than a Permitted Lien) is made on all or
any part of the Collateral which is not cured within 15 days after the
occurrence of the same; 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 


 


6

















 


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 change in the record or beneficial ownership
of an aggregate of more than 20% of the outstanding shares of stock of
Borrower, in one or more transactions, compared to the ownership of outstanding
shares of stock of Borrower in effect on the date hereof, 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.  


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 


 


7

















 


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 four 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 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 


 


8

















 


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.


“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
35% 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.


“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.


 


9

















 


“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) 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.


“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 


 


10

















 


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; (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.  


“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.


“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 checks, wire transfers and other items of
payment received by Silicon (including proceeds of Accounts and payment of the
Obligations in full) shall be deemed applied by Silicon on account of the
Obligations on receipt by Silicon of immediately available funds, and, for
purposes of the foregoing, any such funds 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.  


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 


 


11

















 


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.


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, Levy, Small &
Lallas, but Borrower acknowledges and agrees that Levy, Small & Lallas is
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 


 


12

















 


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.


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.


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: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  UNIFY CORPORATION

  	
   

  	
  SILICON VALLEY BANK 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Todd E. Wille

  	
   

  	
  By

  	
  /s/ Kevin Gillis

  	
   

  
	
   

  	
  President or Vice President

  	
   

  	
  Title

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Peter DiCorti

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary or Ass’t Secretary

  	
   

  	
   

  	
   

  
								



 


 


 


 


13

















 


Silicon Valley Bank


Schedule to



Loan and Security Agreement


 


	
  Borrower:

  	
  Unify Corporation

  	
   

  
	
  Address:

  	
  2101 Arena Blvd., Suite 100

  	
   

  
	
   

  	
  Sacramento, California 
  95834

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  June 6, 2003

  	
   

  



 


This
Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-borrower of even date.




 





	
  1.

  	
  CREDIT
  LIMIT

  	
   

  
	
   

  	
  (Section
  1.1):

  	
  An
  amount not to exceed the lesser of: 
  (i) $750,000 at any one time outstanding (the “Maximum Credit
  Limit”); or (ii) 75% (the “Advance Rate”) of the amount of
  Borrower’s Eligible Accounts (as defined in Section 8 above).  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Silicon
  may, from time to time, modify the Advance Rate, in its good faith business
  judgment, upon notice to the Borrower, based on changes in collection
  experience with respect to Accounts or other issues or factors relating to
  the Accounts or other Collateral.

  
	
   

  	
  Letter of Credit Sublimit

  	
   

  
	
   

  	
  (Section
  1.6):

  	
  $750,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Cash
  Management

  	
   

  
	
   

  	
  Sublimit:

  	
  $250,000, provided
  that the total Cash Management Sublimit and the Foreign Exchange Contract
  Sublimit shall not, at any time, exceed $250,000.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Borrower may use Loans
  available hereunder, up to the above Cash Management Sublimit 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 (the “Cash
  Management Reserves”), and Silicon may charge to Borrower’s Loan account, any
  amounts that may 

  



 


1

















 


	
   

  	
   

  	
  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:

  	
  $250,000, provided that
  the total Cash Management Sublimit and the Foreign Exchange Contract Sublimit
  shall not, at any time, exceed $250,000.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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 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) (the “FX 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

















 


	
   

  	
   

  	
   

  
	
  2.

  	
  INTEREST.

  	
   

  
	
   

  	
  Interest Rate (Section 1.2):

  	
  A
  rate equal to the “Prime Rate” in effect from time to time, plus 2%
  per annum, provided that, for purposes of calculating interest hereunder, the
  Prime Rate on each day shall not be less than 4.25% 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.

  
	
   

  	
   

  	
   

  
	
  3.

  	
  FEES (Section
  1.4):

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Loan Fees:

  	
  $15,000
  with respect to the Non-Exim Loan and $15,000 with respect to the Exim Loan,
  for a total of $30,000, payable concurrently herewith.

  
	
   

  	
   

  	
   

  
	
   

  	
  Collateral Monitoring

  	
   

  
	
   

  	
  Fee:

  	
  $1,250,
  per month, payable in arrears (prorated for any partial month at the
  beginning and at termination of this Agreement), provided that no Collateral
  Monitoring Fee shall be charged in a month in which the Streamline Period is
  in effect during the entire month.

  
	
   

  	
   

  	
   

  
	
  4.

  	
  MATURITY DATE 

  	
   

  
	
   

  	
  (Section 6.1): 

  	
  One
  year from the date of this Agreement.

  
	
   

  	
   

  	
   

  
	
  5.

  	
  FINANCIAL
  COVENANTS

  	
   

  
	
   

  	
  (Section 5.1):

  	
  Borrower
  shall comply with each of the following covenants: 

  
	
   

  	
   

  	
   

  
	
   

  	
  Minimum Total Cash: 

  	
  Borrower
  shall maintain total cash of not less than $750,000 as of the end of each
  month.

  
	
   

  	
   

  	
   

  
	
   

  	
  Minimum
  Cash

  	
   

  
	
   

  	
  at
  Silicon: 

  	
  Borrower
  shall, at all times, maintain cash of not less than $500,000 on deposit with
  Silicon.

  



 


3

















 


	
   

  	
  Minimum
  Tangible 

  	
   

  
	
   

  	
  Net
  Worth:

  	
  Borrower
  shall maintain a Tangible Net Worth of not less than the following amounts as
  of the end of each of the following months:

  



 


	
   

  	
  As of end of:

  	
   

  	
  Minimum
  Tangible

  Net Worth

  	
   

  
	
   

  	
  May, 2003

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  June, 2003

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  July, 2003

  	
   

  	
  $700,000

  	
   

  
	
   

  	
  August, 2003

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  September, 2003

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  October, 2003

  	
   

  	
  $700,000

  	
   

  
	
   

  	
  November, 2003

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  December, 2003

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  January, 2004

  	
   

  	
  $1,400,000

  	
   

  
	
   

  	
  February, 2004

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  March 2004

  	
   

  	
  $100,000

  	
   

  
	
   

  	
  April, 2004

  	
   

  	
  $1,800,000

  	
   

  



 


	
   

  	
  Definitions.

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “Tangible
  Net Worth” shall mean the excess of total assets over total liabilities,
  determined in accordance with GAAP, with the following adjustments:  

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)
  there shall be excluded from assets: 
  (i) notes, accounts receivable and other obligations owing to Borrower
  from its officers or other Affiliates, and (ii) all assets which would be
  classified as intangible assets under GAAP, including without limitation
  goodwill, licenses, patents, trademarks, trade names, copyrights, capitalized
  software and organizational costs, licenses and franchises

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)
  there shall be excluded from liabilities: 
  all indebtedness which is subordinated to the Obligations under a
  subordination agreement in form specified by Silicon or by language in the
  instrument evidencing the indebtedness which Silicon agrees in writing is
  acceptable to Silicon in its good faith business judgment.

  



 


4

















 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  REPORTING.

  	
   

  	
   

  	
   

  
	
   

  	
  (Section 5.3):

  	
   

  	
  Borrower shall provide
  Silicon with the following:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  1.

  	
  Weekly, and on each
  request for a Loan, transaction reports and schedules of collections, on
  Silicon’s standard form.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  2.

  	
  Monthly accounts
  receivable agings, aged by invoice date, within 30 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 30 days after the end of each month. 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  4.

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  5.

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  6.

  	
  Monthly Compliance
  Certificates, within thirty 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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  7.

  	
  Quarterly unaudited
  financial statements, as soon as available, and in any event within
  forty-five days after the end of each fiscal quarter of Borrower.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  8.

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  9.

  	
  Annual financial
  statements, as soon as available, and in any event within 120 days following
  the end of Borrower’s fiscal year, certified by, and with an unqualified
  opinion of, independent certified public accountants acceptable to Silicon.

  
						



 


5

















 


	
   

  	
   

  	
   

  
	
  7.

  	
  BORROWER
  INFORMATION:

  	
   

  
	
   

  	
   

  	
  Borrower represents and warrants that the information set forth in
  the Representations and Warranties of the Borrower dated _______________,
  previously submitted to Silicon (the “Representations”) is true and correct
  as of the date hereof.

  
	
   

  	
   

  	
   

  
	
  8.

  	
  ADDITIONAL
  PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
    

  	
   

  	
  (a)

  	
  Banking
  Relationship.  Borrower
  shall at all times maintain its primary banking relationship with Silicon. As
  to any Deposit Accounts and investment accounts maintained with another
  institution, Borrower shall cause such institution, within 30 days after the
  date of this Agreement, 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 Deposit Accounts and investment
  accounts.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  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.  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.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Exim
  Agreement; Cross-Collateralization; Cross-Default.  Silicon and the Borrower are parties to
  that certain Loan and Security Agreement (Exim Program) of even date (the
  “Exim Agreement”).  Both this
  Agreement and the Exim Agreement shall continue in full force and effect, and
  all rights and remedies under this Agreement and the Exim Agreement are cumulative.  The term “Obligations” as used in this
  Agreement and in the Exim Agreement shall include without limitation the
  obligation to pay when due all Loans made pursuant to this Agreement (the
  “Non-Exim Loans”) and all interest thereon and the obligation to pay when due
  all Loans made pursuant to the Exim Agreement (the “Exim Loans”) and all
  interest thereon.  Without limiting
  the generality of the foregoing, all “Collateral” as defined in this
  Agreement and as defined in the Exim Agreement shall secure all Exim Loans
  and all Non-

  



 


6

















 


	
   

  	
   

  	
   

  	
   

  	
  Exim Loans and all interest thereon, and all other Obligations.  Any Event of Default under this Agreement
  shall also constitute an Event of Default under the Exim Agreement, and any
  Event of Default under the Exim Agreement shall also constitute an Event of
  Default under this Agreement.  In the
  event Silicon assigns its rights under the Exim Agreement and/or under any
  Note evidencing Exim Loans and/or its rights under this Agreement and/or
  under any Note evidencing Non-Exim Loans, to any third party, including
  without limitation the Export-Import Bank of the United States (“Exim Bank”),
  whether before or after the occurrence of any Event of Default, Silicon shall
  have the right (but not any obligation), in its sole discretion, to allocate
  and apportion Collateral to the Agreement and/or Note assigned and to specify
  the priorities of the respective security interests in such Collateral
  between itself and the assignee, all without notice to or consent of the
  Borrower.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (d)

  	
  Streamline
  Provisions.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (1)

  	
  Borrower may, at its
  option, elect not to have any Non-Exim Loans or Letters of Credit outstanding
  for specified periods of time (the ‘Streamline Periods’). At least 10 days
  prior to putting a Streamline Period into effect, Borrower will give Silicon
  written notice thereof, specifying the date the Streamline Period is to
  start.  On or prior to the Business
  Day immediately preceding commencement of the Streamline Period Borrower will
  pay to Silicon, by wire transfer, an amount sufficient to repay in full all
  outstanding Non-Exim Loans, all accrued interest thereon.  Borrower may not elect to have a
  Streamline Period go into effect if, at the date the Streamline Period is to
  go into effect, there are any outstanding Letters of Credit or the combined
  amount of the required FX Reserves and Cash Management Reserves exceeds
  $250,000.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (2)

  	
  During the Streamline
  Period, no Non-Exim Loans may be made, no Letters of Credit may be
  outstanding, and the combined amount of the required FX Reserves and Cash
  Management Reserves may not exceed $250,000.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (3)

  	
  During the Streamline
  Period, provided no Event of Default has occurred and is continuing, Borrower
  will not be required to provide Silicon with weekly reporting of
  transactions, weekly schedules of Accounts or schedules of collections (as
  called for by Section 4.3 of this Agreement). 

  



 


7

















 


	
   

  	
   

  	
   

  	
   

  	
  (4)

  	
  Provided no Default or
  Event of Default has occurred and is continuing, Borrower may, at its option,
  terminate the Streamline Period, so that Borrower can thereafter request
  Non-Exim Loans and Letters of Credit under this Agreement, by giving Silicon
  written notice at least 30 days before the Streamline Period is to terminate,
  together with such information relating to the Accounts and other Collateral
  as Silicon shall specify.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (5)

  	
  Upon Borrower giving
  notice that it wishes to terminate the Streamline Period, and thereafter,
  Borrower will, provide Silicon with the daily reporting of transactions and
  daily schedules and assignments of Accounts and schedules of collections, as
  called for by Section 4.3 of this Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (6)

  	
  During the Streamline
  Period, Borrower shall provide a borrowing base certificate to Silicon, on a
  monthly basis, in such form as Silicon shall specify, within 30 days after
  the end of each month.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (e)

  	
  Warrants.  Borrower shall provide
  Silicon with seven-year warrants to purchase shares of common stock of the
  Borrower, on the terms set forth in the Warrant to Purchase Stock and related
  documents being executed concurrently with this Agreement.  Said warrants shall be deemed fully earned
  on the date hereof, shall be in addition to all interest and other fees, and
  shall be non-refundable.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (f)

  	
  Condition
  Precedent-UCC Filings and Searches.  Borrower
  agrees that no Loans will be made and no other credit accommodations will be
  provided until UCC-1 Financing Statements with respect to Borrower have been
  filed of record in appropriate jurisdictions and searches showing such filing
  and no conflicting filings have been received by Silicon.

  



 


	
  Borrower:

  	
   

  	
  Silicon: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  UNIFY CORPORATION

  	
   

  	
  SILICON VALLEY BANK 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Todd E. Wille

  	
   

  	
  By

  	
  /s/ Kevin Gillis

  	
   

  
	
   

  	
  President or Vice President

  	
   

  	
  Title

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Peter DiCorti

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary or Ass’t Secretary

  	
   

  	
   

  	
   

  
								



 


8























 


Silicon Valley Bank


Loan and Security Agreement


(Exim Program)


 


	
  Borrower:

  	
  Unify Corporation

  	
   

  
	
  Address:

  	
  2101 Arena Blvd., Suite 100

  	
   

  
	
   

  	
  Sacramento, California 
  95834

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  June 6, 2003

  	
   

  



 


THIS LOAN AND SECURITY AGREEMENT (EXIM PROGRAM) 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.


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 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 


 


1

















 


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.


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 $15,000 fair
market value of Equipment is located.


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 


 


2

















 


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 the
interests of 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.


(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.


3.10 
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

















 


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.


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.   If the Steamline Period is in effect, Borrower shall
nevertheless continue to remit to Silicon all payments on, and proceeds of,
Accounts as provided above and, if a lockbox account or other blocked account
has been established, Borrower shall continue to cause all such payments and
proceeds to be deposited into said lockbox account or other blocked account,
but, if the Steamline Period is in effect and no Default or Event of Default
has occurred and is continuing, Silicon shall, promptly after receipt of such
payments and proceeds in immediately available funds, deposit the same into a
Deposit Account of Borrower maintained at Silicon, rather than applying the
same to the Obligations.


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 following 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 $25,000 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.


4.6 
Disputes.  Borrower shall notify Silicon promptly of all disputes or claims
relating to Accounts on the regular reports provided to Silicon.  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 manner,
in the ordinary course of business, and in arm’s length transactions, which 


 


4

















 


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.


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
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 


 


5

















 


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) engage, directly or
indirectly, in any business other than the businesses currently engaged in by
Borrower or reasonably related thereto; 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.


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 as set forth in the Non-Exim Agreement.


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 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 (including without limitation
the reporting obligations in Section 4.3 of this Agreement and Section 6 of the
Schedule), which failure is not cured within five Business Days after the date
due; or (f) any levy, assessment, attachment, seizure, lien or encumbrance
(other than a Permitted Lien) is made on all or any part of the Collateral
which is not cured within 15 days after the occurrence of the same; 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 


 


6

















 


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 change in the
record or beneficial ownership of an aggregate of more than 20% of the outstanding
shares of stock of Borrower, in one or more transactions, compared to the
ownership of outstanding shares of stock of Borrower in effect on the date
hereof, 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.


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 


 


7

















 


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 four
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 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 


 


8

















 


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.


“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 constitutes “Eligible Export-Related Accounts
Receivable” (as defined in the Exim Borrower Agreement referred to in the
Schedule), and 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 have sales terms exceeding net 90 days from invoice date, and the
Account must not be more than 60 days past the invoice due date (unless insured
through EXIM Bank insurance in form and amount acceptable to Silicon in its good
faith business judgment, in which case said 60-day period shall be 90 days)
(the “Eligibility Period”) and must be supported by a written purchase
order, (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) [intentionally omitted], (viii)
[intentionally omitted],  (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 35% 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.


 “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.


 


9

















 


“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) 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.


“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 


 


10

















 


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; (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.


“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.


“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 checks, wire transfers and other items of
payment received by Silicon (including proceeds of Accounts and payment of the
Obligations in full) shall be deemed applied by Silicon on account of the
Obligations on receipt by Silicon of immediately available funds, and, for
purposes of the foregoing, any such funds 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.


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 


 


11

















 


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.


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, Levy, Small &
Lallas, but Borrower acknowledges and agrees that Levy, Small & Lallas is
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.


 


12

















 


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.


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: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  UNIFY CORPORATION

  	
   

  	
  SILICON VALLEY BANK 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Todd E. Wille

  	
   

  	
  By

  	
  /s/ Kevin Gillis

  	
   

  
	
   

  	
  President or Vice President

  	
   

  	
  Title

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Peter DiCorti

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary or Ass’t Secretary

  	
   

  	
   

  	
   

  
								



 


13

















 


Silicon Valley Bank


Schedule to


Loan and Security Agreement (Exim
Program)


 


	
  Borrower:

  	
  Unify Corporation

  	
   

  
	
  Address:

  	
  2101 Arena Blvd., Suite 100

  	
   

  
	
   

  	
  Sacramento, California 
  95834

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  June 6, 2003

  	
   

  



 


This
Schedule forms an integral part of the Loan and Security Agreement (Exim
Program) between Silicon Valley Bank and the above-borrower of even date.




 





	
  1.

  	
  CREDIT
  LIMIT

  	
   

  
	
   

  	
  (Section
  1.1):

  	
  An
  amount not to exceed the lesser of: 
  (i) $750,000 at any one time outstanding (the “Maximum Credit
  Limit”); or (ii) 75% (the “Advance Rate”) of the amount of
  Borrower’s Eligible Accounts (as defined in Section 8 above).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Silicon
  may, from time to time, modify the Advance Rate, in its good faith business
  judgment, upon notice to the Borrower, based on changes in collection
  experience with respect to Accounts or other issues or factors relating to
  the Accounts or other Collateral.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Loans
  are subject to the Exim Provisions set forth in Section 9 below.

  
	
   

  	
  Letter of Credit Sublimit

  	
   

  
	
   

  	
  (Section
  1.6):

  	
  $750,000.

  
	
   

  	
   

  	
   

  
	
   

  	
  Foreign Exchange

  	
   

  
	
   

  	
  Contract Sublimit:

  	
  $250,000.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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 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 

  



 


1

















 


	
   

  	
   

  	
  right to withhold, from the Loans otherwise
  available to Borrower under this Agreement, a reserve (which shall be in
  addition to all other reserves) (the “FX 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 2%
  per annum, provided that, for purposes of calculating interest hereunder, the
  Prime Rate on each day shall not be less than 4.25% 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.

  
	
   

  	
   

  	
   

  
	
  3.

  	
  FEES (Section
  1.4):

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Loan Fee:

  	
  As
  provided in the Non-Exim Agreement.

  
	
   

  	
   

  	
   

  
	
  4.

  	
  MATURITY DATE

  	
   

  
	
   

  	
  (Section
  6.1): 

  	
  One
  year from the date of this Agreement.

  



 


2

















 


	
   

  	
   

  	
   

  
	
  5.

  	
  FINANCIAL
  COVENANTS

  	
   

  
	
   

  	
  (Section
  5.1):

  	
   

  
	
   

  	
   

  	
  Borrower
  shall comply with all of the financial covenants set forth in Section 5 of
  the Schedule to the Non-Exim Agreement.

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPORTING.

  	
   

  
	
   

  	
  (Section
  5.3):

  	
   

  
	
   

  	
   

  	
  Borrower
  shall provide Silicon with the following:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  With
  respect to any Accounts included as Eligible Accounts, the following
  information:  (1) purchase order
  number; (2) invoice number; (3) invoice date and due date; (4) sales terms;
  (5) amount (with currency); (6) country or address and country; (7) customer
  name.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Monthly
  accounts receivable agings, aged by invoice date, within 30 days after the
  end of each month.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Monthly
  accounts payable agings, aged by invoice date, and outstanding or held check
  registers, if any, within 30 days after the end of each month.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.

  	
  Monthly
  Compliance Certificates, within thirty 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 financial statements, as soon as available, and in any event within
  forty-five days after the end of each fiscal quarter of Borrower.

  



 


3

















 


	
   

  	
   

  	
  9.

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.

  	
  Annual
  financial statements, as soon as available, and in any event within 120 days
  following the end of Borrower’s fiscal year, certified by, and with an
  unqualified opinion of, independent certified public accountants acceptable
  to Silicon.

  
	
   

  	
   

  	
   

  
	
  7.

  	
  BORROWER
  INFORMATION.

  	
   

  
	
   

  	
   

  	
  Borrower represents and warrants that the information set forth in
  the Representations and Warranties of the Borrower dated _______________,
  previously submitted to Silicon (the “Representations”) is true and correct
  as of the date hereof.

  
	
   

  	
   

  	
   

  
	
  8.

  	
  ADDITIONAL
  PROVISIONS.

  	
   

  
	
   

  	
   

  	
  The Additional Provisions set forth in Sections 8(a), (b) and (d) of
  the Schedule to the Non-Exim Agreement (as defined below) shall also be
  applicable to this Agreement.  With respect
  to the Streamline Provisions set forth in Section 8(d) of the Non-Exim
  Agreement, whenever the Streamline Provisions of the Non-Exim Agreement are
  applicable, they shall also be applicable under this Agreement, and whenever
  the Non-Streamline Provisions of the Non-Exim Agreement are applicable, they
  shall also be applicable under this Agreement.

  
	
   

  	
   

  	
   

  
	
  9.

  	
  EXIM
  PROVISIONS.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Exim Guaranty.  Prior to the first
  disbursement of any Loans hereunder, Borrower shall cause the Export Import
  Bank of the United States (the “Exim Bank”) to guarantee the Loans made under
  this Agreement, pursuant to a Master Guarantee Agreement, Loan Authorization
  Agreement and (to the extent applicable) Delegated Authority Letter Agreement
  (collectively, the “Exim Guaranty”), and Borrower shall cause the Exim
  Guaranty to be in full force and effect throughout the term of this Agreement
  and so long as any Loans hereunder are outstanding.  If, for any reason, the Exim Guaranty shall cease to be in full
  force and effect, of if the Exim Bank declares the Exim Guaranty void or
  revokes any obligations thereunder or denies liability thereunder, any such
  event shall constitute an 

  



 


4

















 


	
   

  	
   

  	
  Event
  of Default under this Agreement. 
  Nothing in any confidentiality agreement in this Agreement or in any
  other agreement shall restrict Silicon’s right to make disclosures and
  provide information to the Exim Bank in connection with the Exim Guaranty.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Exim Borrower Agreement; Costs.  Borrower shall, concurrently execute and
  deliver a Borrower Agreement, in the form specified by the Exim Bank, in
  favor of Silicon and the Exim Bank 
  (the “Exim Borrower Agreement”). This Agreement is subject to all of
  the terms and conditions of the Exim Borrower Agreement, all of which are
  hereby incorporated herein by this reference.  Borrower expressly agrees to perform all of the obligations and
  comply with all of the affirmative and negative covenants and all other terms
  and conditions set forth in the Exim Borrower Agreement as though the same
  were expressly set forth herein.  In
  the event of any conflict between the terms of the Exim Borrower Agreement
  and the other terms of this Agreement, whichever terms are more restrictive
  shall apply. Borrower acknowledges and agrees that it has received a copy of
  the Loan Authorization Agreement which is referred to in the Exim Borrower
  Agreement.  Borrower agrees to be
  bound by the terms of the Loan Authorization Agreement, including, without
  limitation, by any additions or revisions made prior to its execution on
  behalf of Exim Bank.  Upon the
  execution of the Loan Authorization Agreement by Exim Bank and Silicon, it
  shall become an attachment to the Exim Borrower Agreement.  Borrower shall reimburse Silicon for all
  fees and all out of pocket costs and expenses incurred by Silicon with
  respect to the Exim Guaranty and the Exim Borrower Agreement, including
  without limitation all facility fees and usage fees, and Silicon is
  authorized to debit Borrower’s account with Silicon for such fees, costs and
  expenses when paid by Silicon.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Non-Exim Agreement;
  Cross-Collateralization; Cross-Default. Silicon and the Borrower
  are parties to another Loan and Security Agreement of even date (the
  “Non-Exim Agreement”).  Both this
  Agreement and the Non-Exim Agreement shall continue in full force and effect,
  and all rights and remedies under this Agreement and the Non-Exim Agreement
  are cumulative.  The term
  “Obligations” as used in this Agreement and in the Non-Exim Agreement shall
  include without limitation the obligation to pay when due all Loans made
  pursuant to this Agreement (the “Exim Loans”) and all interest thereon and
  the obligation to pay when due all Loans made pursuant to the Non-Exim
  Agreement (the “Non-Exim Loans”) and all interest thereon.  Without limiting the 

  
					



 


5

















 


	
   

  	
   

  	
  generality
  of the foregoing, all “Collateral” as defined in this Agreement and as
  defined in the Non-Exim Agreement shall secure all Exim Loans and all
  Non-Exim Loans and all interest thereon, and all other Obligations.  Any Event of Default under this Agreement
  shall also constitute an Event of Default under the Non-Exim Agreement, and
  any Event of Default under the Non-Exim Agreement shall also constitute an
  Event of Default under this Agreement. 
  In the event Silicon assigns its rights under this Agreement and/or
  under any Note evidencing Exim Loans and/or its rights under the Non-Exim
  Agreement and/or under any Note evidencing Non-Exim Loans, to any third
  party, including without limitation the Exim Bank, whether before or after
  the occurrence of any Event of Default, Silicon shall have the right (but not
  any obligation), in its sole discretion, to allocate and apportion Collateral
  to the Agreement and/or Note assigned and to specify the priorities of the
  respective security interests in such Collateral between itself and the
  assignee, all without notice to or consent of the Borrower.  Silicon shall use commercially reasonable
  efforts to give Borrower notice of any assignment of its rights under this
  Agreement to the Exim Bank, if, at the date of the assignment no Event of
  Default or Default shall have occurred and be continuing.  In the event Borrower terminates this
  Agreement, any such termination shall also constitute a termination of the
  Non-Exim Agreement, and all such terminations be subject to the other
  provisions of this Agreement and the Non-Exim Agreement.

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
  Condition Precedent-UCC Filings
  and Searches.  Borrower
  agrees that no Loans will be made and no other credit accommodations will be
  provided until UCC-1 Financing Statements with respect to Borrower have been
  filed of record in appropriate jurisdictions and searches showing such filing
  and no conflicting filings have been received by Silicon.

  



 


 


	
  Borrower:

  	
   

  	
  Silicon: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  UNIFY CORPORATION

  	
   

  	
  SILICON VALLEY BANK 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Todd E. Wille

  	
   

  	
  By

  	
  /s/ Kevin Gillis

  	
   

  
	
   

  	
  President or Vice President

  	
   

  	
  Title

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Peter DiCorti

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary or Ass’t Secretary

  	
   

  	
   

  	
   

  
								



 


 


6























 


EXPORT-IMPORT
BANK OF THE UNITED STATES


WORKING
CAPITAL GUARANTEE PROGRAM


 


BORROWER AGREEMENT


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


 


RECITALS


 


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


 


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


 


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


 


NOW, THEREFORE, Borrower
hereby agrees as follows:


 


ARTICLE I

DEFINITIONS


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


“Accounts
Receivable” shall mean all of Borrower’s now owned or hereafter acquired (a)
“accounts” (as such term is defined in the UCC), other receivables, book debts
and other forms of obligations, whether arising out of goods sold or services
rendered or from any other transaction; (b) rights in, to and under all
purchase orders or receipts for goods or services; (c) rights to any goods
represented or purported to be represented by any of the foregoing (including
unpaid sellers’ rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods); (d) moneys due
or to become due to such Borrower under all purchase orders and contracts for
the sale of goods or the performance of services or both by Borrower (whether
or not yet earned by performance on the part of Borrower), including the
proceeds of the foregoing; (e) any notes, drafts, letters of credit, insurance
proceeds or other instruments, documents and writings evidencing or supporting
the foregoing; and (f) all collateral security and guarantees of any kind
given by any other Person with respect to any of the foregoing.


 


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Disbursement” shall mean, collectively,
(a) an advance of a working capital loan from Lender to Borrower under the Loan
Facility, and (b) an advance to fund a drawing under a Letter of Credit issued
or caused to be issued by Lender for the account of Borrower under the Loan
Facility.


 


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


 


 


2

















 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


3

















 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


4

















 


 


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


 


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


 


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


 


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


 


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


 


(h)           that is demonstration Inventory;


 


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


 


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


 


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


 


(l)            that constitutes defense articles or defense services;


 


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


 


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


 


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


 


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


 


 


5

















 


 


net worth determined in accordance with GAAP;
and (g) has revenue generating operations relating to its core business
activities for at least one year.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Final Disbursement Date” shall
mean, unless subject to an extension of such date agreed to by Ex-Im Bank, the
last date on which Lender may make a Disbursement set forth in Section 


 


 


6

















 


 


10 of the Loan Authorization Agreement or, if
such date is not a Business Day, the next succeeding Business Day; provided,
however, to the extent that Lender has not received cash collateral or
an indemnity with respect to Letter of Credit Obligations outstanding on the
Final Disbursement Date, the Final Disbursement Date with respect to an advance
to fund a drawing under a Letter of Credit shall be no later than thirty (30)
Business Days after the expiry date of the Letter of Credit related thereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Lien” shall mean any
mortgage, security deed or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, lien, charge, claim, security interest, security title,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or 


 


 


7

















 


 


agreement to give, any financing statement
perfecting a security interest under the UCC or comparable law of any
jurisdiction) by which property is encumbered or otherwise charged.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


8

















 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


9

















 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


10

















 


 


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


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


ARTICLE II

OBLIGATIONS OF BORROWER


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


 


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


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


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


 


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


 


                (iii)          defense
articles or defense services; or


 


 


11

















 


 


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


 


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


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


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


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


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


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


2.07      Additional
Security or Payment.  (a)  Borrower shall at all times ensure that the
Export-Related Borrowing Base equals or exceeds the Credit Accommodation Amount.  If informed by Lender or if Borrower
otherwise has actual knowledge that the Export-Related Borrowing Base is at any
time less than the Credit Accommodation Amount, Borrower shall, within five (5)



 


12

















 


 


Business Days, either (i) furnish additional
Collateral to Lender, in form and amount satisfactory to Lender and Ex-Im Bank
or (ii) pay to Lender an amount equal to the difference between the Credit
Accommodation Amount and the Export-Related Borrowing Base.


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


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


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


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


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


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


(a)           Borrower
or any Guarantor (i) applies for, consents to or suffers the appointment of, or
the taking of possession by, a receiver, custodian, trustee, liquidator or
similar fiduciary of 


 


 


13

















 


 


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


 


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


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


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


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


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


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


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


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


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


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


 


14

















 


 


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


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


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


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


(b)           If the Loan Facility is a Transaction
Specific Loan Facility, Borrower shall, within two (2) Business Days of the
receipt thereof, pay to Lender (for application against the outstanding Loan
Facility Obligations and accrued and unpaid interest thereon) all checks,
drafts, cash and other remittances it may receive in payment or on account of
the Export-Related Accounts Receivable or any other Collateral, in precisely
the form received (except for the endorsement of Borrower where
necessary).  Pending such deposit,
Borrower shall hold such amounts in trust for Lender separate and apart and
shall not commingle any such items of payment with any of its other funds or
property.


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


 


15

















 


 


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


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


ARTICLE III

RIGHTS AND REMEDIES


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


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


 


16

















 


ARTICLE IV

MISCELLANEOUS


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


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


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


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


 


 


17

















 


 


IN
WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed as of
the 6th day of June, 2003.


	
  UNIFY CORPORATION

  	
   

  
	
  (Name
  of Borrower)

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Peter J. DiCorti

  	
   

  
	
   

  	
  (Signature)

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Peter J. DiCorti

  	
   

  
	
   

  	
  (Print
  or Type)

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
  (Print
  or Type)

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED:

  	
   

  
	
   

  	
   

  	
   

  
	
  SILICON VALLEY BANK

  	
   

  
	
  (Name
  of Lender)

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kevin Gillis

  	
   

  
	
   

  	
  (Signature)

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Kevin Gillis

  	
   

  
	
   

  	
  (Print
  or Type)

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
  (Print
  or Type)

  	
   

  



 


 


18

















 


 


ANNEXES:


	
  Annex A

  	
  -

  	
  Loan Authorization
  Agreement or Loan Authorization Notice

  



 


 


 


 


19

















 


ASSIGNMENT


 


For value
received, Silicon Valley Bank hereby sells, assigns and transfers unto:


 


                                Name: Silicon
Valley Bancshares


                                Address: 3003
Tasman Drive (HA-200)


                                Santa Clara, CA
95054


 


                                TaxID:
91-1962278


 


	
  that
  certain Warrant to Purchase Stock issued
  by UNIFY CORPORATION (the “Company”), on June 6, 2003

  
	
   

  
	
  (the
  “Warrant”) together with all rights, title and interest therein.

  



 


	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Gillis

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kevin Gillis

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  



 


	
  Date:

  	
  6/6/03

  	
   

  



 


By its execution below, and for the benefit
of the Company, Silicon Valley Bancshares makes each of the representations and
warranties set forth in Article 4 of the Warrant as of the date hereof.


 


	
   

  	
  SILICON VALLEY BANCSHARES

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paulette Mehas

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Paulette Mehas

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
  Treasurer

  



 


 


 























 


INTELLECTUAL
PROPERTY SECURITY AGREEMENT


This Intellectual
Property Security Agreement is entered into as of June 6, 2003 by and between
SILICON VALLEY BANK (“Secured Party”) and UNIFY CORPORATION (“Grantor”).


RECITALS


A.            Secured Party and Grantor are entering into that certain
Loan and Security Agreement by dated of even date herewith (as the same may be
amended, modified or supplemented from time to time, the “Loan Agreement”;
capitalized terms used herein which are not defined, have the meanings set forth
in the Loan Agreement).


B.            Pursuant to the terms of the Loan Agreement, Grantor has
granted to Secured Party a security interest in all of Grantor’s right, title
and interest, whether presently existing or hereafter acquired, in, to all
Intellectual Property and all other Collateral.


NOW, THEREFORE, as
collateral security for the payment and performance when due of all of the
Obligations, Grantor hereby grants, represents, warrants, covenants and agrees
as follows:


AGREEMENT


1.             Grant of Security Interest.  To secure all of the Obligations, Grantor
grants and pledges to Secured Party a security interest in all of Grantor’s
right, title and interest in, to and under its Intellectual Property (as
defined in the Loan Agreement), including without limitation the following:


(a)           All of present and future United
States registered copyrights and copyright registrations, including, without
limitation, the registered copyrights, maskworks, software, computer programs
and other works of authorship subject to United States copyright protection
listed in Exhibit A-1 to this Agreement (and including all of the
exclusive rights afforded a copyright registrant in the United States under 17
U.S.C.  §106
and any exclusive rights which may in the future arise by act of Congress or
otherwise) and all present and future applications for copyright registrations
(including applications for copyright registrations of derivative works and
compilations) (collectively, the “Registered Copyrights”), and any and all
royalties, payments, and other amounts payable to Grantor in connection with
the Registered Copyrights, together with all renewals and extensions of the
Registered Copyrights, the right to recover for all past, present, and future
infringements of the Registered Copyrights, and all computer programs, computer
databases, computer program flow diagrams, source codes, object codes and all
tangible property embodying or incorporating the Registered Copyrights, and all
other rights of every kind whatsoever accruing thereunder or pertaining
thereto.


(b)           All present and future copyrights,
maskworks, software, computer programs and other works of authorship subject to
(or capable of becoming subject to) United States copyright protection which
are not registered in the United States Copyright Office (the “Unregistered
Copyrights”), whether now owned or hereafter acquired, including without
limitation the Unregistered Copyrights listed in Exhibit A-2 to this
Agreement, and any and all 


 


1

















 


royalties,
payments, and other amounts payable to Grantor in connection with the
Unregistered Copyrights, together with all renewals and extensions of the
Unregistered Copyrights, the right to recover for all past, present, and future
infringements of the Unregistered Copyrights, and all computer programs,
computer databases, computer program flow diagrams, source codes, object codes
and all tangible property embodying or incorporating the Unregistered
Copyrights, and all other rights of every kind whatsoever accruing thereunder
or pertaining thereto.  The Registered
Copyrights and the Unregistered Copyrights collectively are referred to herein
as the “Copyrights.”


(c)           All right, title and interest in and
to any and all present and future license agreements with respect to the
Copyrights.


(d)           All present and future accounts,
accounts receivable, royalties, and other rights to payment arising from, in
connection with or relating to the Copyrights.


(e)           All patents, patent
applications and like protections including, without limitation, improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same, including without limitation the patents and
patent applications set forth on Exhibit B attached hereto
(collectively, the “Patents”);


(f)            All trademark and
servicemark rights, whether registered or not, applications to register and
registrations of the same and like protections, and the entire goodwill of the
business of Grantor connected with and symbolized by such trademarks, including
without limitation those set forth on Exhibit C attached hereto
(collectively, the “Trademarks”);


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


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


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


(j)            All proceeds and
products of the foregoing, including without limitation all payments under
insurance or any indemnity or warranty payable in respect of any of the
foregoing, and all license royalties and proceeds of infringement suits, and
all rights corresponding to the foregoing throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part of the foregoing.


2.             Loan Agreement. 
This security interest is granted in conjunction with the security
interest granted to Secured Party under the Loan Agreement.  The rights and remedies of Secured Party
with respect to the security interest granted hereby are in addition to those
set forth in the Loan Agreement and the other Loan Documents, and those which
are now or hereafter available to Secured Party as a matter of law or equity.  Each right, power and remedy of Secured
Party provided for herein or in the Loan Agreement or any of the other Loan
Documents, or now or 


 


2

















 


hereafter existing
at law or in equity shall be cumulative and concurrent and shall be in addition
to every right, power or remedy provided for herein and the exercise by Secured
Party of any one or more of the rights, powers or remedies provided for in this
Agreement, the Loan Agreement or any of the other Loan Documents, or now or hereafter
existing at law or in equity, shall not preclude the simultaneous or later
exercise by any person, including Secured Party, of any or all other rights,
powers or remedies.


3.             Covenants and
Warranties. Grantor represents, warrants, covenants and agrees as follows:


 


(a)           Grantor has no present maskworks,
software, computer programs and other works of authorship registered with the
United States Copyright Office except as disclosed on Exhibit A-1 hereto.


(b)           Grantor shall undertake all
reasonable measures to cause its employees, agents and independent contractors
to assign to Grantor all rights of authorship to any copyrighted material in
which Grantor has or may subsequently acquire any right or interest.


(c)           Grantor shall
promptly advise Secured Party of any Trademark, Patent or Copyright not
specified in this Agreement, which is hereafter acquired by Grantor.


 


(d)           Grantor shall not
register any maskworks, software, computer programs or other works of
authorship subject to United States copyright protection with the United States
Copyright Office without first complying with the following:  (i) providing Secured Party with at least 5
days prior written notice thereof, (ii) providing Secured Party with a copy of
the application for any such registration and (iii) executing and filing such
other instruments, and taking such further actions as Secured Party may
reasonably request from time to time to perfect or continue the perfection of
Secured Party’s interest in the Collateral, including without limitation the
filing with the United States Copyright Office, simultaneously with the filing
by Grantor of the application for any such registration, of a copy of this
Agreement or a Supplement hereto in form acceptable to Secured Party
identifying the maskworks, software, computer programs or other works of
authorship being registered and confirming the grant of a security interest
therein in favor of Secured Party.


 


4.             General. If
any action relating to this Agreement is brought by either party hereto against
the other party, the prevailing party shall be entitled to recover reasonable
attorneys fees, costs and disbursements. This Agreement may be amended only by
a written instrument signed by both parties hereto.  To the extent that any provision of this Agreement conflicts with
any provision of the Loan Agreement, the provision giving Secured Party greater
rights or remedies shall govern, it being understood that the purpose of this
Agreement is to add to, and not detract from, the rights granted to Secured
Party under the Loan Agreement.  This
Agreement, the Loan Agreement, and the other Loan Documents comprise the entire
agreement of the parties with respect to the matters addressed in this
Agreement. This Agreement shall be governed by the laws of the State of California,
without regard for choice of law provisions. Grantor and Secured Party consent
to the nonexclusive jurisdiction of any state or federal court located in Santa
Clara County, California.


 


 


3

















 


5.             WAIVER
OF RIGHT TO JURY TRIAL.  SECURED
PARTY AND GRANTOR 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: (I) THIS
AGREEMENT; OR (II)  ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN SECURED PARTY AND GRANTOR; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF SECURED PARTY OR GRANTOR OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, 
ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH SECURED PARTY OR GRANTOR;
IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE.


IN WITNESS WHEREOF, the
parties have cause this Intellectual Property Security Agreement to be duly
executed by its officers thereunto duly authorized as of the first date written
above.


	
  Address of Grantor:

  	
  Grantor:

  
	
   

  	
   

  	
   

  
	
  2101 Arena Blvd., Suite
  100

  Sacramento, California  95834

  	
  UNIFY CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter J. DiCorti

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
  Name:

  	
  Peter J. DiCorti

  
	
   

  	
   

  	
   

  
	
  Address of Secured Party:

  	
  Secured Party:

  
	
   

  	
   

  	
   

  
	
  3003 Tasman Drive

  Santa Clara, California  95054

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Gillis

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  



 


Form:
3/1/02


Document
Version: -1


 


 


4

















 


EXHIBIT A-1


 


REGISTERED COPYRIGHTS


(including copyrights that are the subject of an application for
registration)


 


 


	
  Description

  	
   

  	
  Registration/

  Application

  Number

  	
   

  	
  Registration/

  Application

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 

















 


 


EXHIBIT A-2


 


UNREGISTERED COPYRIGHTS


 


 


 


NONE


 


 


 


 


 

















 


 


EXHIBIT B


 


PATENTS


 


 


	
  Description

  	
   

  	
  Registration/

  Application

  Number

  	
   

  	
  Registration/

  Application

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 

















 


 


EXHIBIT C


TRADEMARKS


 


 


	
  Description

  	
   

  	
  Registration/

  Application

  Number

  	
   

  	
  Registration/

  Application

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SEE ATTACHED

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


 

















 


 


The undersigned Directors further hereby
certify that the following persons are the duly elected and acting officers of
the Corporation named above as borrower and that the following are their actual
signatures:


 


	
  NAMES

  	
   

  	
  OFFICE(S)

  	
   

  	
  ACTUAL SIGNATURES

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Todd Wille

  	
   

  	
  Chief Executive Officer

  	
   

  	
  x

  	
  /s/ Todd E. Wille

  
	
   

  	
   

  	
  President & Chairman

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Peter DiCorti

  	
   

  	
  Chief Financial Officer

  	
   

  	
  x

  	
  /s/ Peter J. DiCorti

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Peter DiCorti

  	
   

  	
  Secretary

  	
   

  	
  x

  	
  /s/ Peter J. DiCorti

  



 


AUTHORITY


 


RESOLVED, that the officers
of the Corporation are, and each individually is, authorized to do and perform
any and all such acts, including execution of any and all documents and
certificates, as they shall deem necessary or advisable, to carry out the
purpose of the foregoing resolutions.


 


COUNTERPARTS


 


RESOLVED, that this
consent may be executed in two or more counterparts, each of which shall be
deemed an original (including copies sent to a party by telecopy or facsimile
transmission), but all of which together constitute one and the same
instrument.


 


IN
WITNESS WHEREOF, the undersigned, being the Directors of the Corporation have
executed this consent as of the date first written above.


 


 


	
   

  	
   

  
	
  Todd
  Wille, Chairman of the Board

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Jack Corrie

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Kurt
  Garbe

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Tery
  Larrew

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Steve Whiteman

  	
   

  



 


 


 


 


3

















 


 


WARRANT
TO PURCHASE STOCK


 


 


THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO
THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT
AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE
OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.


 


	
  Company:

  	
  UNIFY CORPORATION

  
	
  Number of Shares:

  	
  115,385

  	
   

  
	
  Class of Stock:

  	
  Common

  	
   

  
	
  Warrant Price:

  	
  $

  	
  0.39

  	
  per share

  
	
  Issue Date:

  	
  JUNE 6, 2003

  	
   

  
	
  Expiration Date:

  	
  JUNE 6, 2010

  	
   

  
				



 


                THIS WARRANT
CERTIFIES THAT, for the agreed upon value of $1.00 and for other good and
valuable consideration, SILICON VALLEY BANK (“Holder”) is entitled to purchase
the number of fully paid and nonassessable shares of the class of securities
(the “Shares”) of the company (the “Company”) at the Warrant Price, all as set
forth above and as adjusted pursuant to Article 2 of this Warrant, subject
to the provisions and upon the terms and conditions set forth in this Warrant.


 


ARTICLE
1. EXERCISE.


 


                                1.1           Method
of Exercise.  Holder may exercise
this Warrant by delivering a duly executed Notice of Exercise in substantially
the form attached as Appendix 1 to the principal office of the Company.  Unless Holder is exercising the conversion
right set forth in Article 1.2, Holder shall also deliver to the Company a
check, wire transfer (to an account designated by the Company), or other from
of payment acceptable to the Company for the aggregate Warrant Price for the
Shares being purchased.


 


                                1.2           Conversion
Right.  In lieu of exercising this
Warrant as specified in Article 1.1, Holder may from time to time convert this
Warrant, in whole or in part, into a number of Shares determined by dividing
(a) the aggregate fair market value of the Shares or other securities otherwise
issuable upon exercise of this Warrant minus the aggregate Warrant Price of
such Shares by (b) the fair market value of one Share.  The fair market value of the Shares shall be
determined pursuant to Article 1.3.


 


                                1.3           Fair
Market Value.  If the Company’s
common stock is traded in a public market and the shares are common stock, the
fair market value of each Share shall be the closing price of a Share reported
for the business day immediately before Holder delivers its Notice of Exercise
to the Company (or in the instance where the Warrant is exercised immediately
prior to the effectiveness of the Company’s initial public offering, the “price
to public” per share price specified in the final prospectus relating to such
offering).  If the Company’s common
stock is traded in a public market and the Shares are preferred stock, the fair
market value of a Share shall be the closing price of a share of the Company’s
common stock reported for the business day immediately before Holder delivers
its Notice of Exercise to the Company (or, in the 


 


 


 

















 


 


instance where the Warrant
is exercised immediately prior to the effectiveness of the Company’s initial
public offering, the initial “price to public” per share price specified in the
final prospectus relating to such offering), in both cases, multiplied  by the number of shares of the Company’s
common stock into which a Share is convertible.    If the Company’s common stock is  not traded in a public market, the Board of Directors of the
Company shall determine fair market value in its reasonable good faith
judgment.


 


                                1.4           Delivery
of Certificate and New Warrant. 
Promptly after Holder exercises or converts this Warrant and, if
applicable, the Company receives payment of the aggregate Warrant Price, the
Company shall deliver to Holder, or instruct the Company’s transfer agent to
issue to Holder certificates for the Shares acquired and, if this Warrant has
not been fully exercised or converted and has not expired, a new Warrant
representing the Shares not so acquired.


 


                                1.5           Replacement
of Warrants.  On receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of loss, theft or destruction, on
delivery of an indemnity agreement reasonably satisfactory in form and amount
to the Company or, in the case of mutilation, or surrender and cancellation of
this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor.


 


                                1.6           Treatment
of Warrant Upon Acquisition of Company.


 


                                                1.6.1        “Acquisition”.  For the purpose of this Warrant,
“Acquisition” means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company where the holders of the Company’s
securities before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the transaction.


 


                                                1.6.2        Treatment of Warrant at Acquisition.


 


A)           Upon the written request of the Company, Holder agrees
that, in the event of an Acquisition in which the sole consideration is cash,
either (a) Holder shall exercise its conversion or purchase right under this
Warrant and such exercise will be deemed effective immediately prior to the
consummation of such Acquisition or (b) if Holder elects not to exercise the
Warrant, this Warrant will expire upon the consummation of such Acquisition.
The Company shall provide the Holder with written notice of its request
relating to the foregoing (together with such reasonable information as the
Holder may request in connection with such contemplated Acquisition giving rise
to such notice), which is to be delivered to Holder not less than ten (10) days
prior to the closing of the proposed Acquisition.


B)            Upon the written request of the Company, Holder agrees
that, in the event of an Acquisition that is an “arms length” sale of all or
substantially all of the Company’s assets (and only its assets) to a third
party that is not an Affiliate (as defined below) of the Company (a “True Asset
Sale”), either (a) Holder shall exercise its conversion or purchase right under
this Warrant and such exercise will be deemed effective immediately prior to
the consummation of such Acquisition or (b) if Holder elects not to exercise
the Warrant, this Warrant will continue until the Expiration Date if the
Company continues as a going concern following the closing of any such True Asset
Sale. The Company shall provide the Holder with written notice of its request
relating to the foregoing (together with such reasonable information as the
Holder may request in connection with such contemplated Acquisition giving rise
to such notice), which is to be delivered to Holder not less than ten (10) days
prior to the closing of the proposed Acquisition.


 


2

















 


C)            Upon the closing of any Acquisition other than those
particularly described in subsections (A) and (B) above, the successor entity
shall assume the obligations of this Warrant, and this Warrant shall be
exercisable for the same securities, cash, and property as would be payable for
the Shares issuable upon exercise of the unexercised portion of this Warrant as
if such Shares were outstanding on the record date for the Acquisition and
subsequent closing. The Warrant Price and/or number of Shares shall be adjusted
accordingly.


As used herein “Affiliate”
shall mean any person or entity that owns or controls directly or indirectly
ten (10) percent or more of the stock of Company, any person or entity that
controls or is controlled by or is under common control with such persons or
entities, and each of such person’s or entity’s officers, directors, joint
venturers or partners, as applicable.


ARTICLE
2. ADJUSTMENTS TO THE SHARES.


 


                                2.1           Stock Dividends, Splits, Etc.  If the Company declares or pays a dividend
on the Shares payable in common stock, or other securities, then upon exercise
of this Warrant, for each Share acquired, Holder shall receive, without cost to
Holder, the total number and kind of securities to which Holder would have been
entitled had Holder owned the Shares of record as of the date the dividend
occurred.  If the Company subdivides the
Shares by reclassification or otherwise into a greater number of shares or
takes any other action which increase the amount of stock into which the Shares
are convertible, the number of shares purchasable hereunder shall be
proportionately increased and the Warrant Price shall be proportionately
decreased.  If the outstanding shares
are combined or consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be proportionately increased and the
number of Shares shall be proportionately decreased.


 


                                2.2           Reclassification, Exchange,
Combinations or Substitution.  Upon
any reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event.  Such an event shall
include any automatic conversion of the outstanding or issuable securities of
the Company of the same class or series as the Shares to common stock pursuant to
the terms of the Company’s Articles or Certificate (as applicable) of
Incorporation upon the closing of a registered public offering of the Company’s
common stock.  The Company or its
successor shall promptly issue to Holder an amendment to this Warrant setting
forth the number and kind of such new securities or other property issuable
upon exercise or conversion of this Warrant as a result of such
reclassification, exchange, substitution or other event that results in a
change of the number and/or class of securities issuable upon exercise or
conversion of this Warrant.  The
amendment to this Warrant shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article 2 including, without limitation, adjustments to the Warrant Price and
to the number of securities or property issuable upon exercise of the new
Warrant.  The provisions of this Article
2.2 shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.


                                2.3           [intentionally omitted] 


                                2.4           No
Impairment.  The Company shall not,
by amendment of its Articles or Certificate (as applicable) of Incorporation or
through a reorganization, transfer of assets, consolidation, merger,
dissolution, issue, or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out of 


 


 


3

















 


 


all the provisions of this
Article 2 and in taking all such action as may be necessary or appropriate to
protect Holder’s rights under this Article against impairment.


 


                                2.5           Fractional
Shares.  No fractional Shares shall
be issuable upon exercise or conversion of the Warrant and the number of Shares
to be issued shall be rounded down to the nearest whole Share.  If a fractional share interest arises upon
any exercise or conversion of the Warrant, the Company shall eliminate such
fractional share interest by paying Holder the amount computed by multiplying
the fractional interest by the fair market value of a full Share.


 


                                2.6           Certificate
as to Adjustments.  Upon each
adjustment of the Warrant Price, the Company shall promptly notify Holder in
writing, and, at the Company’s expense, promptly compute such adjustment, and
furnish Holder with a certificate of its Chief Financial Officer setting forth
such adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the
Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price.


 


ARTICLE
3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.


 


                                3.1           Representations
and Warranties.  The Company
represents and warrants to the Holder as follows:


 


                                                (a)           The initial Warrant Price referenced
on the first page of this Warrant is not greater than (i) the price per share
at which the Shares were last issued in an arms-length transaction in which at
least $500,000 of the Shares were sold and (ii) the fair market value of the
Shares as of the date of this Warrant.


 


                                                (b)           All Shares which may be issued upon
the exercise of the purchase right represented by this Warrant, and all
securities, if any, issuable upon conversion of the Shares, shall, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable, and
free of any liens and encumbrances except for restrictions on transfer provided
for herein or under applicable federal and state securities laws.


 


                                                (c)           The Capitalization Table previously
provided to Holder remains true and complete as of the Issue Date.


 


                                3.2           Notice of Certain Events.  If the Company proposes at any time (a) to
declare any dividend or distribution upon any of its stock, whether in cash,
property, stock, or other securities and whether or not a regular cash
dividend; (b) to offer for sale additional shares of any class or series of the
Company’s stock; (c) to effect any reclassification or recapitalization of any
of  its stock; (d) to merge or
consolidate with or into any other corporation, or sell, lease, license, or
convey all or substantially all of its assets, or to liquidate, dissolve or
wind up; or (e) offer holders of registration rights the opportunity to
participate in an underwritten public offering of the company’s securities for
cash, then, in connection with each such event, the Company shall give Holder:
(1) at least 10 days prior written notice of the date on which a record will be
taken for such dividend, distribution, or subscription rights (and specifying
the date on which the holders of common stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in
(c) and (d) above; (2) in the case of the matters referred to in (c) and (d)
above at least 10 days prior written notice of the date when the same will take
place (and specifying the date on which the holders of common stock will be
entitled to exchange their common stock for securities or other property
deliverable upon the occurrence of such event); and (3) in the case of the
matter referred to in (e) above, the same notice as is given to the holders of
such registration rights.


 


4

















 


                              3.3             [intentionally omitted] 


 


                              3.4             No Shareholder Rights.  Except as provided in this Warrant, the
Holder will not have any rights as a shareholder of the Company until the
exercise of this Warrant.


 


ARTICLE 4. REPRESENTATIONS, WARRANTIES OF THE HOLDER.  The Holder represents and warrants to the
Company as follows:


 


                              4.1             Purchase for Own Account.  This Warrant and the securities to be
acquired upon exercise of this Warrant by the Holder will be acquired for
investment for the Holder’s account, not as a nominee or agent, and not with a
view to the public resale or distribution within the meaning of the Act.  Holder also represents that the Holder has
not been formed for the specific purpose of acquiring this Warrant or the
Shares.


 


                              4.2             Disclosure of Information.  The Holder has received or has had full
access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the acquisition of this Warrant
and its underlying securities.  The
Holder further has had an opportunity to ask questions and receive answers from
the Company regarding the terms and conditions of the offering of this Warrant
and its underlying securities and to obtain additional information (to the
extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished
to the Holder or to which the Holder has access.


 


                              4.3             Investment Experience.  The Holder understands that the purchase of
this Warrant and its underlying securities involves substantial risk.  The Holder has experience as an investor in
securities of companies in the development stage and acknowledges that the Holder
can bear the economic risk of such Holder’s investment in this Warrant and its
underlying securities and has such knowledge and experience in financial or
business matters that the Holder is capable of evaluating the merits and risks
of its investment in this Warrant and its underlying securities and/or has a
preexisting personal or business relationship with the Company and certain of
its officers, directors or controlling persons of a nature and duration that
enables the Holder to be aware of the character, business acumen and financial circumstances
of such persons.


 


                              4.4             Accredited Investor Status.  The Holder is an “accredited investor”
within the meaning of Regulation D promulgated under the Act.


 


                              4.5             The Act.  The Holder understands that this Warrant and
the Shares issuable upon exercise or conversion hereof have not been registered
under the Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Holder’s
investment intent as expressed herein. 
The Holder understands that this Warrant and the Shares issued upon any
exercise or conversion hereof must be held indefinitely unless subsequently
registered under the 1933 Act and qualified under applicable state securities
laws, or unless exemption from such registration and qualification are
otherwise available.


 


ARTICLE
5. MISCELLANEOUS.


 


                              5.1             Term:  This Warrant is exercisable in whole or in
part at any time and from time to time on or before the Expiration Date.  


 


 


5

















 


 


                                5.2           Legend.  This Warrant shall be imprinted with a legend
in substantially the following form:


 


THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE ACT, OR THE SECURITIES
LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5
BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.


 


                                5.3           Compliance
with Securities Laws on Transfer. 
This Warrant may not be transferred or assigned in whole or in part
without compliance with applicable federal and state securities laws by the
transferor and the transferee (including, without limitation, the delivery of
investment representation letters and legal opinions reasonably satisfactory to
the Company, as reasonably requested by the Company).  The Company shall not require Holder to provide an opinion of
counsel if the transfer is to Silicon Valley Bancshares (Holder’s parent
company) or any other affiliate of Holder. 
Additionally, the Company shall also not require an opinion of counsel
if there is no material question as to the availability of current information
as referenced in Rule 144(c), Holder represents that it has complied with Rule
144(d) and (e) in reasonable detail, the selling broker represents that it has
complied with Rule 144(f), and the Company is provided with a copy of Holder’s
notice of proposed sale.


 


                                5.4           Transfer
Procedure.  Upon receipt by Holder
of the executed Warrant, Holder will transfer all of this Warrant to Silicon
Valley Bancshares, Holder’s parent company, by execution of an Assignment
substantially in the form of Appendix 2. 
Subject to the provisions of Article 5.3 and upon providing Company with
written notice, Silicon Valley Bancshares and any subsequent Holder may
transfer all or part of this Warrant or the Shares issuable upon exercise of
this Warrant (or the Shares issuable directly or indirectly, upon conversion of
the Shares, if any) to any transferee, provided, however, in connection with
any such transfer, Silicon Valley Bancshares or any subsequent Holder will give
the Company notice of the portion of the Warrant being transferred with the
name, address and taxpayer identification number of the transferee and Holder
will surrender this Warrant to the Company for reissuance to the transferee(s)
(and Holder if applicable).  The Company
may refuse to transfer this Warrant or the Shares to any person who directly
competes with the Company, unless, in either case, the stock of the Company is
publicly traded.


 


                                5.5           Notices.  All notices and other communications from
the Company to the Holder, or vice versa, shall be deemed delivered and
effective when given personally or mailed by first-class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company or the Holder, as the case may  (or on the first business day after transmission by facsimile) be,
in writing by the Company or such holder from time to time.  Effective upon receipt of the fully executed
Warrant and the initial transfer described in Article 5.4 above, all notices to
the Holder shall be addressed as follows until the Company receives notice of a
change of address in connection with a transfer or otherwise:


 


Silicon
Valley Bancshares


Attn:  Treasury Department


3003
Tasman Drive, HA 200


Santa
Clara, CA 95054


Telephone:  408-654-7400


Facsimile:  408-496-2405


 


 


6

















 


 


Notice to the Company shall be addressed
as follows until the Holder receives notice of a change in address:


Unify Corporation

Attn:  Chief Financial Officer

2101 Arena Blvd., Suite 100


Sacramento, California  95834


Telephone:  916-928-6288

Facsimile:  916-928-6408


                                5.6           Waiver.  This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by both parties.


 


                                5.7           Attorney’s
Fees.  In the event of any dispute
between the parties concerning the terms and provisions of this Warrant, the
party prevailing in such dispute shall be entitled to collect from the other
party all costs incurred in such dispute, including reasonable attorney’s fees.


 


                                5.8           Automatic
Conversion upon Expiration.  In the
event that, upon the Expiration Date, the fair market value of one Share (or
other security issuable upon the exercise hereof) as determined in accordance
with Section 1.3 above is greater than the Exercise Price in effect on such
date, then this Warrant shall automatically be deemed on and as of such date to
be converted pursuant to Section 1.2 above as to all Shares (or such other
securities) for which it shall not previously have been exercised or converted,
and the Company shall promptly deliver a certificate representing the Shares
(or such other securities) issued upon such conversion to the Holder.


 


                                5.9           Counterparts.  This Warrant may be executed in
counterparts, all of which together shall constitute one and the same
agreement.


 


                                5.10         Governing
Law.  This Warrant shall be governed
by and construed in accordance with the laws of the State of California,
without giving effect to its principles regarding conflicts of law.


 


 


	
  “COMPANY”

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UNIFY CORPORATION

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Todd E. Wille

  	
   

  	
  By:

  	
  /s/ Peter J. DiCorti

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Todd E. Wille

  	
   

  	
  Name:

  	
  Peter J. DiCorti

  
	
   

  	
  (Print)

  	
   

  	
   

  	
  (Print)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chairman of the Board,
  President or Vice President

  	
   

  	
  Title:

  	
  Chief Financial Officer,
  Secretary, Assistant Treasurer or Assistant Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


7

















 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  “HOLDER”

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SILICON VALLEY BANK

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Print)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  



 


 


8

















 


 


APPENDIX 1


 


NOTICE OF EXERCISE


 


                1.             Holder elects to purchase
___________ shares of the Common/Series ______ Preferred [strike one] Stock of
__________________ pursuant to the terms of the attached Warrant, and tenders
payment of the purchase price of the shares in full.


 


                                [or]


                1.             Holder
elects to convert the attached Warrant into Shares/cash [strike one] in the
manner specified in the Warrant.  This
conversion is exercised for _____________________ of the Shares covered by the
Warrant.


                [Strike paragraph that does not apply.]


                2.             Please issue a certificate or
certificates representing the shares in the name specified below:


 


	
   

  	
   

  	
   

  
	
   

  	
  Holders
  Name

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Address)

  	
   

  



 


                3.             By its execution below and for the benefit of the
Company, Holder hereby restates each of the representations and warranties in
Article 4 of the Warrant as the date hereof.


 


	
   

  	
  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Date):

  	
   

  



 


 


9

















 


 


APPENDIX 2


 


ASSIGNMENT


 


For
value received, Silicon Valley Bank hereby sells, assigns and transfers unto


 


	
   

  	
  Name:

  	
   

  	
  Silicon Valley
  Bancshares

  
	
   

  	
  Address:

  	
   

  	
  3003 Tasman Drive
  (HA-200)

  
	
   

  	
   

  	
   

  	
  Santa Clara, CA 95054

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Tax ID:

  	
   

  	
  91-1962278

  



 


 


that
certain Warrant to Purchase
Stock issued by [insert Borrower Name] (the “Company”), on [insert Issue Date]
(the “Warrant”) together with all rights, title and interest therein.


 


	
   

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  



 


	
  Date: [insert Issue Date]

  	
   

  	
   

  



 


By
its execution below, and for the benefit of the Company, Silicon Valley
Bancshares makes each of the representations and warranties set forth in
Article 4 of the Warrant  as of the date
hereof.


	
   

  	
  SILICON VALLEY BANCSHARES

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  



 


 


10