Q1 2004 10-Q Exhibit 10.139





Exhibit 10.139

THIRD AMENDMENT TO DOMESTIC FACTORING AGREEMENT

This Third Amendment to Domestic Factoring Agreement
("Amendment") made as of April 29, 2004 by and between Pacific Business Funding,
a division of Greater Bay Bank N.A. successor to Cupertino National Bank
("Purchaser" or "PBF") and Southwall Technologies Inc., a Delaware corporation
("Seller"). 

RECITALS




	Seller was and is a Delaware corporation 


	Purchaser's business includes extensions of credit in the
form of factoring of accounts receivable. On or about May 16, 2003, Purchaser
agreed to factor accounts of Seller pursuant to certain written agreements
between the parties. From time to time thereafter, Purchaser advanced moneys to
Seller in various amounts and under certain terms and conditions ("Advances").
Said advances were made pursuant to the certain instruments, documents and
agreements executed and delivered to Purchaser by Seller, including the
following:





	That certain DOMESTIC FACTORING AGREEMENT dated May 16,
2003, together with all exhibits and schedules thereto, including without
limitation that certain written SCHEDULE 1 TO DOMESTIC FACTORING AGREEMENT,
together with that certain written Amendment to the Domestic Factoring dated
June 16, 2003, and that certain written AMENDMENT TO DOMESTIC FACTORING
AGREEMENT executed in October 2003 (collectively the "Domestic Factoring
Agreement"). 


	That certain EXPORT-IMPORT BANK FACTORING AGREEMENT dated
May 16, 2003, together with all exhibits and schedules thereto including without
limitation that certain written SCHEDULE 1 TO EXPORT-IMPORT BANK FACTORING
AGREEMENT, together with that certain written Amendment to the Export-Import
Factoring Agreement dated June 16, 2003 (collectively the "Ex-Im Factoring
Agreement").


	That certain written Intellectual Property Security
Agreement dated May 16, 2003 (the "IP Security Agreement"). 


	That certain UCC Financing Statement, which Financing
Statement was filed on or about July 30, 2001 in the records of the State of
Delaware as Instrument No. 1082062-6 ("DE-UCC").


	That certain assignment document recorded January 17,
2001 at Reel No 011461 and Frame No. 0892, in the United States Patent and
Trademark Office ("PTO Recordation").


	That certain written Export Import Bank of the United
States Working Capital Guarantee Program Seller Agreement; and 


	Other Related Documents.


	As of April 29, 2004, the outstanding Accounts in respect
to the obligations of Seller to Purchaser under the Domestic Factoring Agreement
was $1,476,177.21 plus attorneys fees incurred by Purchaser in
connection with Seller's default under the Factoring Documents. As
of April 29, 2004, the outstanding Accounts in respect to the obligations of
Seller to Purchaser under the Ex-Im Factoring Agreement was negative
$1,211.22, plus attorneys fees incurred by Purchaser in connection
with Seller's default under the Factoring Documents. 


	To secure Seller's obligations to Purchaser,
Seller has granted to Purchaser a security interest in certain of Seller's
assets (the "Collateral") pursuant to the Domestic Factoring Agreement and the
IP Security Agreement (collectively, the "Security Agreement") which was
perfected by the filing of (i) the DE-UCC and (ii) the PTO Recordation. Pursuant
to the Security Agreement, the DE-UCC and the PTO Recordation, Purchaser has a
valid, perfected lien of first priority upon the Collateral. 


	Purchaser and Seller are parties to that certain
Forebearance Agreement dated as of December 18, 2003 (the "Forbearance
Agreement"). By their terms, the Domestic Factoring Agreement, the Ex-Im
Factoring Agreement and the Forbearance Agreement terminate on May 5, 2004. The
parties hereto acknowledge their intent to allow the Forbearance Agreement to
terminate by its terms on May 5, 2004, and to the extent, if any, they continue
to exist waive the Defaults set forth in the Forbearance Agreement, to terminate
the Ex-Im Agreement and to amend the Domestic Factoring Agreement.


	This Amendment, the Domestic Factoring Agreement, the
Security Agreement, the DE-UCC, and the PTO Recordation together with any other
documents executed by or among the parties in connection with the Advances, and
any and all amendments and modifications thereto shall be collectively
hereinafter referred to as the "Factoring Documents."


	Seller requests that Purchaser increase the factoring
facility, and amend and/or add certain provisions. Seller has assured Purchaser
that Seller shall perform in accordance with this Amendment and the other
Factoring Documents. Although Purchaser is under no obligation to do so,
Purchaser is willing to make the requested amendments to the Domestic Factoring
Agreement on the terms and conditions set forth in the Domestic Factoring
Agreement and this Amendment, provided all security interests and liens under
the Domestic Factoring Agreement and other Factoring Documents shall continue to
exist and remain in full force and effect.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:




	Definitions. Capitalized terms not otherwise
defined in this Amendment shall have the meaning set forth in the Factoring
Documents.


	Acknowledgment. Seller acknowledges the truth and
accuracy of each of the facts and legal relations contained in the Recitals to
this Amendment. Seller further acknowledges that Purchaser has no obligation to
Seller to purchase Accounts under the Domestic Factoring Agreement but continues
to have the right to purchase Accounts in Purchaser's sole discretion in
accordance with the terms of the Domestic Factoring Agreement.


	Amendment to Domestic Factoring Agreement. The
Domestic Factoring Agreement is hereby amended as follows.

3.1   The last sentence of Section 1.1 of the Domestic
Factoring Agreement is deleted and replaced with the following: 


"In addition, Seller shall deliver to Purchaser any other
supporting documentation with respect to such Accounts, including all invoices,
purchase orders, signed contracts, delivery receipts, time cards and other
documents as reasonably requested by Purchaser. At no time during the term of
this Agreement will Saint-Gobain Accounts exceed twenty-five percent (25%) of
the Maximum Commitment."



3.2   Section 6.1(E) of the Domestic Factoring Agreement is
deleted and replaced with the following: 


"(E) All documents, cash, deposit accounts, securities (but
as to wholly owned foreign subsidiaries of Seller, only sixty-six and six tenths
percent (66.6%) of the securities of such a subsidiary) securities entitlements,
securities accounts, investment property, financial assets, letters of credit,
letter-of-credit rights, supporting obligations, certificates of deposit,
instruments and chattel paper now owned or hereafter acquired and Seller's books
relating to the foregoing;"


3.3   Section 6.6 of the Domestic Factoring Agreement is
deleted and replaced with the following: 


"6.6 Banking Relationship. Seller shall at all times
maintain its banking relationship (to include Seller's general checking account,
payroll accounts and other deposit accounts) with a member bank of Greater Bay
Bank N.A. and, on the date of this Domestic Factoring Agreement, all deposit
accounts of Seller are located with a member bank of Greater Bay Bank N.A.
Seller shall use the services of Purchaser's International Department as
requested from time to time by Purchaser, in order to offset exchange rate risks
associated with billing in EUROs."



3.4   Section 10 of the Domestic Factoring Agreement is deleted
and replaced with the following: 


"10. Term and Termination. This Domestic Agreement
shall automatically terminate on May 5, 2005 ("Termination Date"). Seller and
Purchaser shall each have the right to terminate this Domestic Agreement at any
time provided that if Purchaser terminates this Domestic Agreement within the
first six months from May 5, 2004, the Commitment Fee shall be prorated on a
weekly basis. Notwithstanding the foregoing, any termination of this Domestic
Agreement shall not affect Purchaser's security interest in the Collateral and
Purchaser's ownership of the Purchased Accounts, and this Domestic Agreement
shall continue to be effective, and Purchaser's rights and remedies hereunder
shall survive such termination until all transactions entered into and
Obligations incurred hereunder or in connection therewith have been completed
and satisfied in full."



3.5   Section 1 of Schedule 1 to the Domestic Factoring
Agreement ("Schedule 1") is deleted and replaced with the following: 


"1. ADVANCE AND RESERVE.

	
Advance Rate:
	
Percentage of face amount of the Accounts for Advance:
Seventy-five percent (75%). 

	
Section 1.3
	
 

	
Reserve:
	
Percentage of Account balance for Reserve: Twenty-five
Percent (25%)"

	
Section 1.3
	
 






3.6   Section 2 of Schedule 1 is deleted and replaced with the
following: 


"2. MAXIMUM COMMITMENT.

	
Maximum Commitment:
	
The maximum commitment means an amount equal to the lesser of
(a) Six Million Dollars ($6,000,000), or (b) the Advance Rate."

	
Section 1.2
	
 








3.7   Section 6(i) of Schedule 1 is deleted and replaced with
the following: 


"(i) Seller shall at all times insure all of the tangible
personal property Collateral and carry such business insurance, including but
not limited to trade credit insurance with FCIA on all Purchased Accounts, a
copy of which has been provided to Purchaser, with insurers that are reasonably
acceptable to Purchaser provided that Purchaser acknowledges that the insurers
on the attached schedules are acceptable. All insurance policies related to the
Collateral, including but not limited to the Purchased Accounts, shall name
Purchaser as the additional insured and loss payee. Seller shall deliver to
Purchaser a loss payee endorsement in a form reasonably satisfactory to
Purchaser."



3.8   Sections 6(ii) [financial reporting], (iii) [tangible net
worth], (iv) [current ratio], (v) [projected revenue], (vi) [Nasdaq Listing] and
(viii) [Export-Import Factoring Agreement] of Schedule 1 are
deleted. 






	Termination of Ex-Im Factoring Agreement. The Ex-
Im Factoring Agreement is hereby terminated.


	Payments. Seller shall pay the following sums to
Purchaser in good funds:

5.1   All payments (including without limitation interest
payments) due or that may come due under the terms of the Domestic Factoring
Agreement, or other Factoring Documents should be paid in accordance
therewith;

5.2   On execution of this Amendment to Purchaser a facility
fee of one percent (1%) of the Maximum Commitment.

5.3   On or before May 31, 2004, Purchaser's attorneys fees and
any other costs incurred as of the date hereof and in the future through said
date in connection with this Amendment.





	Accounts Receivable Audit. Seller shall cooperate
in two Accounts Receivable audits each calendar year during the term of the
Domestic Factoring Agreement, the first of which shall be completed within
forty-five (45) days of the date of this Amendment. Seller shall pay all costs
and fees associated with the Accounts Receivable audits required by this Section
6.


	Financial Information. As periodically reasonably
requested by Purchaser, Seller shall provide to Purchaser accounts receivable
aging, accounts payable aging and financial statements within 10 business days
of a request from Purchaser.


	Release of Claims.

8.1   No Known Claims Against Purchaser. Seller warrants
and represents to Purchaser that, to Seller's knowledge, it has and has had no
claims, causes of action, demands, costs, losses or actions of any nature
against Purchaser, whether the same have been or might have been asserted as a
claim, cross-claim, counter-claim or cause of action in any tribunal. 

8.2   Release By Seller. For and in consideration of
Purchaser's agreement set forth herein, Seller hereby releases and forever
discharges Purchaser, its affiliates, officers, directors, employees,
shareholders, attorneys, agents and representatives, individually and
collectively, of and from any and all matters arising out of any business,
legal, or lending relationships that have existed prior to the date hereof
between Seller and Purchaser and including any and all past, present or future
claims, actions, causes of action, obligations, costs or demands, known or
unknown, whether or not any such claim, action, cause of action, obligation,
cost, lost or demand has been, or might have been, asserted as a claim, cross-
claim, counter-claim or cause of action in any tribunal. 

8.3   No Prior Assignment of Released Claims. Each of
the parties warrants and represents that it has not assigned or transferred or
purported to assign or transfer to any other person or entity any claim or
matter released herein and that no other person has any interest therein of any
nature. In the event that releasing party shall have assigned or transferred, or
purported to assign or transfer, or any other person shall claim an interest in
any claim or other matter herein released, then the releasing party shall
indemnify the released party and hold it harmless from and against any and all
losses, costs, claims or expenses, including but not limited to all costs
related to the defense of any action, including reasonable attorneys' fees,
based upon or arising out of or incurred as a result of any such claim,
assignment or transfer. 

8.4   No Admission of Liability. Seller understands and
acknowledges that if any claims or other matters herein released existed, such
would be disputed by Purchaser. No action taken by Purchaser, either previously
or in connection with this Agreement, shall be deemed or construed to be
(a) an admission to the truth or falsity of any claims made; or (b) an
acknowledgment or admission by Purchaser of any fault or liability whatsoever to
any other party or to any third party. 

8.5   Waiver of California Civil Code   1542. Each
of the parties hereby relinquishes and waives all rights conferred upon it by
the provisions of Section 1542 of the California Civil Code (or any like
provision of federal or state law), which reads as follows: 


A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor.



Each of the parties hereby acknowledges that it or its
attorneys might hereafter discover facts different from or in addition to those
which it or its attorneys now know or believe to be true with respect to any of
the matters herein released, including that no such claims presently exist, and
agrees that this instrument shall remain in effect as a full and complete
release notwithstanding any such different or additional facts. Each of the
parties hereby covenants that this Agreement shall inure to the benefit of and
be binding upon its administrators, representatives, successors, trustees and
assigns.



	Terms and Conditions of Domestic Factoring
Agreement. Seller further acknowledges that the Factoring Documents are
binding and enforceable according to their terms, and that Purchaser has no
obligation to extend the Maturity Date. Seller agrees that, except as expressly
amended herein, all the terms and conditions of the Factoring Documents remain
in full force and effect, including without limitation the grants of security
interests therein. Seller confirms that the terms of the Domestic Factoring
Agreement and IP Security Agreement govern the security interest granted to
Purchaser in the Collateral and the Collateral secures all debts of Seller to
Purchaser. Seller confirms that it has updated Purchaser of any status changes
to intellectual property owned by Seller and that Seller has a continuous
obligation to provide such updates to Purchaser. Seller hereby acknowledges and
reiterates its authorization to Purchaser to file and record such Financing
Statements and other instruments as Purchaser may deem necessary or desirable
from time to time to perfect or continue the perfection of its security interest
in the Collateral.


	Choice of Law and Venue, Jury Trial Waiver.


This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California, without regard to
principles of conflicts of law. Each of Borrower and PBF hereby submits to the
exclusive jurisdiction of the state and Federal courts located in the County of
Santa Clara, State of California. BORROWER AND PBF EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.


	Successors. The parties hereto expressly agree and
covenant that this Amendment shall inure to the benefit of and be binding upon
their respective representatives, successors, trustees and assigns. With the
exception of the foregoing, this Amendment is not for the benefit of any other
parties apart from Purchaser and Seller.


	Entire Agreement. This
Amendment contains the entire agreement between the parties pertaining to the
subject matter herein, and supersedes any and all prior and/or contemporaneous
oral or written negotiations, agreements, representations, and understandings,
with respect to such subject matter.


	Attorneys Fees. Seller
shall reimburse Purchaser for all attorneys fees and expenses incurred in the
preparation or negotiation of this Amendment.


	Execution in Counterparts. This Amendment may be
executed in an original or one or more counterparts, each of which shall
constitute a duplicate original. Executed counterparts transmitted by
facsimile shall be effective as original signatures.


	 Waiver. As of the date hereof, the Purchaser
hereby waives, to the extent, if any, they continue to exist, all of the
Defaults (as defined in the Forbearance Agreement ) set forth in the Forbearance
Agreement.

IN WITNESS WHEREOF, Purchaser and Seller have executed this
Amendment as of the date set forth in the preamble. 


	
Southwall Technologies Inc., a Delaware corporation
	
Pacific Business Funding, a division of Greater Bay Bank
N.A.

	
By: /s/ Maury Austin

Name: MAURY AUSTIN 

Title: Interim CFO
	
By: /s/ Ron Ernst

Name: RON ERNST

Title: Senior Credit Officer




CONSENT

Needham & Company, Inc. (in the capacities set forth
below) hereby consents to this Third Amendment To Domestic Factoring Agreement
dated as of April 29, 2004 and agrees that all terms and conditions of the
written agreements heretofore entered into between Needham & Company, Inc.
and Purchaser (including without limitation that certain Subordination Agreement
dated February 20, 2004 and that certain Pledge Agreement dated February 20,
2004) remain in full force and effect.

	
 
	
Needham & Company, Inc., a corporation, For Itself and In
Its Capacity As Administrative Agent Of And For The Benefit Of The Convertible
Note Purchasers

	
 
	
By: /s/ Glen W. Albenese

	
 
	
Its: CFO