\nA. MINIMUM TANGIBLE NET WORTH OF:<\/p>\n $5,000,000<\/p>\n
——————————————————————————–
\nB. MINIMUM QUICK RATIO:<\/p>\n
1.25:.00<\/p>\n
——————————————————————————–
\nC. MAXIMUM QUARTERLY LOSSES NOT IN EXCESS OF:<\/p>\n
$2,500,000 (through the FQ ending 2\/28\/99)<\/p>\n
$1,500,000 (each FQ thereafter)
\n——————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Exceptions: (if none, so state):<\/p>\n
——————————————————————————–<\/p>\n
The undersigned authorized officer of Borrower hereby certifies that Borrower is
\nin complete compliance with the terms and conditions of the Loan Agreement for
\nthe period ending _____________________, ____, and as of the date of this
\nCompliance Certificate the representations and warranties stated therein are
\ntrue, accurate and complete as of the date hereof (except as to those
\nrepresentations and warranties which specifically reference a particular date
\nand except as noted above).<\/p>\n
The undersigned further certifies that s\/he knows of no pending conditions which
\nmay cause an Event of Default (as defined in the Loan Agreement) to exist in the
\nnext thirty (30) days. The required support documents for this certification
\nare attached and prepared in accordance with GAAP consistently applied.<\/p>\n
Date: INTRAWARE INC.,
\n ————————- a Delaware corporation<\/p>\n
By:
\n ————————————-
\n Name:
\n ———————————–
\n Title:
\n ———————————-<\/p>\n
Exhibit B
\n Page 1 of 1<\/p>\n
EXHIBIT C<\/p>\n
BORROWING BASE CERTIFICATE<\/p>\n
(To be provided and attached by Bank)<\/p>\n
Exhibit C<\/p>\n
GENERAL SECURITY AGREEMENT<\/p>\n
THIS GENERAL SECURITY AGREEMENT is executed on July 29, 1998 (this
\n“SECURITY AGREEMENT”), by INTRAWARE, INC., a Delaware corporation (hereinafter
\ncalled “GRANTOR”). In consideration of financial accommodations given, to be
\ngiven or continued, Grantor hereby grants to IMPERIAL BANK (hereinafter called
\n“BANK”) a security interest in (a) all property (i) delivered to Bank by
\nGrantor, (ii) which shall be in Bank’s possession or control in any matter or
\nfor any purpose, (iii) described below or (iv) now owned or hereafter acquired
\nby Grantor of the type or class described below and\/or in any exhibit or
\nsupplementary schedule hereto, or in any financing statement filed by Bank and
\nexecuted by or on behalf of Grantor; and (b) the proceeds, increase and products
\nof such property, all accessions thereto, and all property which Grantor may
\nreceive on account of such collateral (collectively referred to as “COLLATERAL”)
\nto secure payment and performance of all of Grantor’s present or future debts or
\nobligations to Bank, whether absolute or contingent (hereafter referred to as
\n“DEBT”). See EXHIBIT A attached hereto and incorporated herein by this
\nreference for a description of the Collateral (it being understood that,
\nnotwithstanding the foregoing, the Collateral shall not include (a) any
\nequipment leased or financed from third parties to the extent the contracts
\nevidencing such lease or financing prohibit the granting by Grantor of any
\nsecurity interest therein (together with accessions, attachments, improvements,
\nreplacements and proceeds thereof), and (b) any rights of Grantor under any
\nlicense or contract if, and to the extent, the granting of a security interest
\ntherein in favor of Bank would violate the terms of such license or contract
\nonly to the extent and for so long as such prohibition is in effect.) The
\nCollateral which is not in Bank’s possession will be located at the locations
\nset forth on EXHIBIT B attached hereto and incorporated herein by this
\nreference. Unless otherwise defined herein, initially capitalized terms used
\nherein shall have the meanings given them (A) in the California Uniform
\nCommercial Code, (B) as defined in that certain Loan Agreement dated as of the
\ndate hereof entered into by and among Grantor and Bank (as the same may be
\nmodified, amended, supplemented, restated or superceded from time to time, the
\n“LOAN AGREEMENT”) or (C) as defined in EXHIBIT A attached hereto.<\/p>\n
Grantor hereby represents, warrants and agrees:<\/p>\n
1. Grantor will immediately pay (a) Bank’s costs of collecting the Debt,
\nof protecting, insuring or realizing on Collateral, and any expenditure of Bank
\npursuant hereto, including attorneys’ fees and expenses, with interest at the
\nrate of twenty-four percent (24%) per year, or the rate applicable to the Debt,
\nwhichever is less, from the date of expenditure, and (b) any deficiency after
\nrealization of Collateral.<\/p>\n
2. Grantor will use the proceeds of any loan that becomes Debt hereunder
\nfor the purpose indicated on the application therefor, and, will promptly
\ncontract to purchase and pay the purchase price of any property which becomes
\nCollateral hereunder from the proceeds of any loan made for that purpose in the
\nevent Bank and Grantor agree to a separate equipment line of credit.<\/p>\n
3. As to all Collateral in Grantor’s possession or the possession of its
\ncontract manufacturers (unless specifically otherwise agreed to by Bank in
\nwriting), Grantor will:<\/p>\n
(a) Have or has possession of the Collateral at the location
\ndisclosed to Bank and will not remove the Collateral from said location, except
\nin the ordinary course of Borrower’s business, provided Grantor shall give Bank
\nprompt written notice thereof and take any actions reasonably requested by Bank
\nto perfect its security interest.<\/p>\n
(b) Keep the Collateral separate and identifiable.<\/p>\n
1.<\/p>\n
(c) Maintain the Collateral in good and saleable condition, repair it
\nif necessary, ordinary wear and tear excepted, use it lawfully and only as
\npermitted by insurance policies, and permit Bank to inspect the Collateral at
\nany reasonable time in accordance with the terms of the Loan Agreement.<\/p>\n
(d) Not sell, contract to sell, lease, encumber or transfer the
\nCollateral (other than the disposition of such inventory Collateral in the
\nordinary course of Borrower’s business and other assets which are obsolete or
\notherwise considered surplus) until the Debt has been paid or performed in full,
\neven though Bank has a security interest in the proceeds of such Collateral.<\/p>\n
4. As to Collateral which is inventory and accounts, Grantor:<\/p>\n
(a) May, until notice from Bank after the occurrence and during the
\ncontinuance of an Event of Default, sell, lease or otherwise dispose of
\ninventory Collateral in the ordinary course of business only, and collect the
\ncash proceeds thereof.<\/p>\n
(b) Will, upon notice from Bank after the occurrence and during the
\ncontinuance of an Event of Default, deposit all cash proceeds as received in a
\ndemand deposit account with Bank, containing only such proceeds and deliver
\nstatements identifying units of inventory disposed of, accounts which gave rise
\nto proceeds, and all acquisitions and returns of inventory as required by Bank.<\/p>\n
(c) Will receive in trust after the occurrence and during the
\ncontinuance of an Event of Default, schedule on forms satisfactory to Bank and,
\nupon notice from Bank, deliver to Bank all non-cash proceeds other than
\ninventory received in trade.<\/p>\n
(d) So long as there does not exist an Event of Default, may obtain
\nrelease of Bank’s interest in individual units of inventory upon request
\ntherefore, payment to Bank of the release price of such units shown on any
\nCollateral schedule supplementary hereto, and compliance herewith as to proceeds
\nthereof.<\/p>\n
5. As to Collateral which are Accounts, Chattel Paper, General
\nIntangibles and Proceeds described in SECTION 4(c) above, Grantor warrants,
\nrepresents and agrees:<\/p>\n
(a) All such Collateral is genuine, enforceable in accordance with
\nits terms and conditions precedent (except as disclosed to and accepted by Bank
\nin writing), and is supported by consecutively numbered invoices to, or rights
\nagainst, the debtors thereon. Grantor will supply Bank with duplicate invoices
\nor other evidence of Grantor’s rights on Bank’s request.<\/p>\n
(b) All persons appearing to be obligated on such Collateral have
\nauthority and capacity to contract.<\/p>\n
(c) To the best of Grantor’s knowledge (without independent
\ninvestigation), all Chattel Paper is in compliance with applicable law as to
\nform, content and manner of preparation and execution and has been properly
\nregistered, recorded, and\/or filed to protect Grantor’s interest thereunder.<\/p>\n
(d) If an account debtor shall also be indebted to Grantor on another
\nobligation, any payment made by such account debtor not specifically designated
\nby an account debtor to be applied on any particular obligation shall be
\nconsidered to be a payment on the account in which Bank has a security interest.
\nShould any remittance include a payment not on an account, it shall be delivered
\nto Bank and, if no Event of Default has occurred, Bank shall pay Grantor the
\namount of such payment.<\/p>\n
2.<\/p>\n
(e) Grantor agrees that following the occurrence and during the
\ncontinuance of an Event of Default, Grantor shall not compromise, settle or
\nadjust any Account or renew or extend the time of payment thereof without Bank’s
\nprior written consent.<\/p>\n
(f) Until Bank exercises its rights to collect the Accounts pursuant
\nto SECTION 11 hereof, Grantor will collect with diligence all Grantor’s
\nAccounts. Any collection of Accounts by Grantor, whether in the form of cash,
\nchecks, notes, or other instruments for the payment of money (properly endorsed
\nor assigned where required to enable Bank to collect same), shall be in trust
\nfor Bank, provided that Grantor shall not be required to remit the same to Bank
\nunless Bank believes, in its sole discretion, such remittance is necessary to
\nprotect Bank’s security interest or an Event of Default has occurred. If an
\nEvent of Default has occurred and is continuing, Grantor shall keep all such
\ncollections separate and apart from all other funds and property so as to be
\ncapable of identification as the property of Bank and deliver said collections
\ndaily to Bank in the identical form received. The proceeds of such collections
\nwhen received by Bank may be applied by Bank directly to the payment of the
\napplicable Loan Account or to any other obligation secured hereby. Any credit
\ngiven by Bank upon receipt of said proceeds shall be conditional credit subject
\nto collection. Returned items at Bank’s option may be charged to Grantor’s
\ndeposit account with Bank. All collections of the Accounts shall be set forth
\non an itemized schedule, showing the name of the account debtor, the amount of
\neach payment and such other information as Bank may request.<\/p>\n
(g) Until Bank exercises its rights to collect the Accounts pursuant
\nto SECTION 11 hereof, Grantor may continue its present policies with respect to
\nreturned merchandise and adjustments. However, Grantor shall immediately notify
\nBank of all cases involving repossessions, and material loss or damage of or to
\nmerchandise represented by the Accounts.<\/p>\n
6. Grantor owns all of the Collateral absolutely and no other person has
\nor claims any interest in any of the Collateral, except for Permitted Liens and
\nas disclosed to and accepted by Bank in writing. Grantor will defend any
\nproceeding which may affect Bank’s security interest in any of the Collateral,
\nand will indemnify and hold Bank free and harmless from all costs and expenses
\nof Bank’s defense.<\/p>\n
7. Grantor will pay when due all existing or future charges, liens or
\nencumbrances on and all taxes and assessments (except for taxes not yet due and
\npayable or which are contested in good faith and for which Grantor has set aside
\nadequate reserves) now or hereafter imposed on or affecting the Collateral and,
\nif the Collateral is in Grantor’s possession, the realty on which the Collateral
\nis located.<\/p>\n
8. Grantor will insure the Collateral with Bank as loss payee in form and
\namounts with companies, and against risks and liability satisfactory to Bank (to
\nthe extent customarily maintained by businesses similar to Borrower’s), and
\nhereby assigns such policies to Bank, agrees to deliver them to Bank at Banks
\nrequest, and authorizes Bank to make any claim thereunder, to cancel the
\ninsurance upon Grantor’s default, and to receive payment of and endorse any
\ninstrument in payment of any loss or return premium. If Grantor should fail to
\ndeliver the required insurance policy or policies to Bank, Bank may, at
\nGrantor’s cost and expense, without any duty to do so, get and pay for insurance
\nnaming as the insured, at Bank’s option, either both Grantor and Bank, or only
\nBank, and the cost thereof shall be secured by this Security Agreement, and
\nshall be repayable as provided in SECTION 1 above.<\/p>\n
9. Grantor will give Bank any information it reasonably requires in
\naccordance with the terms of the Loan Documents. All information at any time
\nsupplied to Bank by Grantor (including, but not limited to, the value and
\ncondition of Collateral, financial statements, financing statements, and
\nstatements made in documentary Collateral) shall be true and correct in all
\nmaterial respects, and Grantor will notify Bank of any adverse change in such
\ninformation. Grantor will promptly notify Bank of any change of Grantor’s
\nresidence, chief executive office or mailing address.<\/p>\n
3.<\/p>\n
10. At any time and from time to time, upon the written request of Bank,
\nand at the sole expense of Grantor, Grantor shall promptly and duly execute and
\ndeliver any and all such further instruments and documents and take such further
\naction as Bank may reasonably deem desirable to obtain the full benefits of this
\nSecurity Agreement and of the rights and powers herein granted, including,
\nwithout limitation, (a) using its best efforts to secure all consents and
\napprovals necessary or appropriate for the grant of a security interest to Bank
\nin any Contract or License held by Grantor or in which Grantor has any rights
\nnot heretofore assigned, (b) filing any financing or continuation statements
\nunder the UCC with respect to the security interests granted hereby, (c) filing
\nor cooperating with Bank in filing any forms or other documents required to be
\nfiled with the United States Patent and Trademark Office, United States
\nCopyright Office, or any filings in any foreign jurisdiction or under any
\ninternational treaty, required to secure or protect Bank’s interest in the
\nCollateral, (d) in the event Bank, in its reasonable discretion, is concerned
\nabout its security interest, transferring Collateral to Bank’s possession (if a
\nsecurity interest in such Collateral can be perfected by possession),
\n(e) placing the interest of Bank as lienholder on the certificate of title (or
\nother evidence of ownership) of any vehicle owned by Grantor or in or with
\nrespect to which Grantor holds a beneficial interest and (f) using reasonable
\nefforts to obtain waivers of liens from landlords and mortgagees. Grantor also
\nhereby authorizes Bank to file any such financing or continuation statement
\nwithout the signature of Grantor. If any amount payable under or in connection
\nwith any of the Collateral is or shall become evidenced by any Instrument, such
\nInstrument, other than checks and notes received in the ordinary course of
\nbusiness, shall be duly endorsed in a manner satisfactory to Bank and delivered
\nto Bank promptly upon Grantor’s receipt thereof.<\/p>\n
11. Upon the occurrence and during the continuation of an Event of
\nDefault, Bank may, without prior notice to Grantor, collect the Collateral and
\nmay give notice of assignment of Accounts to any and all account debtors and
\nGrantor does hereby make, constitute and appoint Bank its irrevocable, true and
\nlawful attorney-in-fact with power to do any act which Grantor is obligated
\nhereby to do, to exercise such rights as Grantor may exercise, to use such
\nequipment as Grantor might use, to enter Grantor’s premises to give notice of
\nBank’s security interest, and to collect Collateral and proceeds and to execute
\nand file in Grantor’s name any financing statements and amendments thereto
\nrequired to perfect Bank’s security interest hereunder, all to protect and
\npreserve the Collateral and Bank’s rights hereunder. Without limiting the
\ngenerality of the foregoing, upon and during the continuance of an Event of
\nDefault, Bank may:<\/p>\n
(a) Endorse the name of Grantor, collect and receive delivery or
\npayment of Instruments and Documents constituting Collateral.<\/p>\n
(b) Demand, sue for, give acquittances for, make extension agreements
\nwith respect to or affecting Collateral, exchange it for other Collateral,
\nrelease persons liable thereon or take security for the payment thereof, and
\ncompromise, prosecute or defend any action, claim, proceeding or other disputes
\nin connection therewith.<\/p>\n
(c) Use or operate Collateral for the purpose of preserving
\nCollateral or its value and for preserving or liquidating Collateral.<\/p>\n
12. Discharge of Grantor except for full payment, or any extension,
\nforbearance, change of rate of interest, or acceptance, release or substitution
\nof Collateral or any impairment or suspension of Bank’s rights against Grantor,
\nor any transfer of Grantor’s interest to another shall not affect the liability
\nof Grantor hereunder. Until the Debt shall have been paid or performed in full,
\nBank’s rights shall continue even if the Debt is deemed unenforceable. Grantor
\nhereby waives: (a) any right to require Bank to proceed against Grantor before
\nany other, or to pursue any other remedy; (b) presentment, protest and notice of
\nprotest, demand and notice of nonpayment, demand or performance, notice of sale,
\nand advertisement of sale; (c) any right to the benefit of or to direct the
\napplication of any Collateral until the Debt shall have been paid or performed
\nin full; and (d) any right of subrogation to Bank until the Debt shall have been
\npaid or performed in full.<\/p>\n
4.<\/p>\n
13. Upon and during the continuance of an Event of Default, at Bank’s
\noption, without demand or notice, all or any part of the Debt shall immediately
\nbecome due and payable. Bank shall have all rights given by law, and may sell,
\nin one or more sales, Collateral in any county where Bank has an office. Bank
\nmay purchase at such sale. Sales for cash or on credit to a wholesaler,
\nretailer or user of the Collateral, or at public or private auction, are all to
\nbe considered commercially reasonable. Bank may require Grantor to assemble the
\nCollateral and make it available to Bank at the entrance to the location where
\nthe Collateral is stored, or at a place designated by Bank.<\/p>\n
14. Bank’s acceptance of partial or delinquent payments or the failure of
\nBank to exercise any right or remedy shall not waive any obligation of Grantor
\nor right of Bank to modify this Security Agreement, or waive any other similar
\ndefault.<\/p>\n
15. Upon the transfer of all or any part of the Debt, Bank may transfer
\nall or any part of the Collateral. Bank may deliver all or any part of the
\nCollateral to any Grantor at any time. Any such transfer or delivery shall
\ndischarge Bank from all liability and responsibility with respect to such
\nCollateral transferred or delivered. This Security Agreement benefits Bank’s
\nsuccessors and assigns and binds Grantor’s heirs, legatees, personal
\nrepresentatives, successors and assigns. Time is of the essence. This Security
\nAgreement, the other Loan Documents and the exhibit(s) attached hereto contain
\nthe entire security agreement between Bank and Grantor. Grantor will execute
\nany additional agreements, assignments or documents reasonably required by Bank
\nto carry this Security Agreement into effect.<\/p>\n
16. If one or more Grantors sign this Security Agreement, their liability
\nhereunder shall be joint and several. Any Grantor who is married hereby agrees
\nthat recourse may be had against his or her separate property for the Debt.<\/p>\n
17. This Security Agreement shall be governed by and construed in
\naccordance with the laws of the State of California, to the jurisdiction of
\nwhose courts Grantor hereby agrees to submit. Grantor agrees that service of
\nprocess may be accomplished by any means authorized by California law. All
\nwords used herein in the singular shall be considered to have been used in the
\nplural where the context and construction so require.<\/p>\n
18. Grantor hereby acknowledges receiving a copy of this Security
\nAgreement and waives all rights to receive from Bank a copy of any financing
\nstatement or financing change statement filed, or any verification statement
\nreceived, at any time in respect of this Security Agreement.<\/p>\n
GRANTOR<\/p>\n
INTRAWARE, INC.,
\n a Delaware corporation<\/p>\n
By: \/s\/ Donald Freed
\n ———————————–
\n Donald Freed
\n Executive Vice President and
\n Chief Financial Officer<\/p>\n
5.<\/p>\n
EXHIBIT A<\/p>\n
DESCRIPTION OF COLLATERAL<\/p>\n
A. COLLATERAL. This Exhibit A covers all right, title and interest of
\nGrantor in, to and under all of the following, wherever located and whether now
\nowned or hereafter owned or acquired (collectively, the “Collateral”):<\/p>\n
(a) All Accounts of Grantor;<\/p>\n
(b) All Chattel Paper of Grantor;<\/p>\n
(c) All Contracts of Grantor;<\/p>\n
(d) All Deposit Accounts of Grantor;<\/p>\n
(e) All Documents of Grantor;<\/p>\n
(f) All Equipment of Grantor;<\/p>\n
(g) All Fixtures of Grantor;<\/p>\n
(h) All General Intangibles of Grantor;<\/p>\n
(i) All Instruments of Grantor;<\/p>\n
(j) All Inventory of Grantor;<\/p>\n
(k) All Investment Property of Grantor;<\/p>\n
(l) All Licenses of Grantor;<\/p>\n
(m) All property of Grantor held by Bank or any other party for whom
\nBank is acting as agent hereunder, including, without limitation, all property
\nof every description now or hereafter in the possession or custody of or in
\ntransit to Bank or such other party for any purpose, including, without
\nlimitation, safekeeping, collection or pledge, for the account of Grantor, or as
\nto which Grantor may have any right or power;<\/p>\n
(n) All other goods and personal property of Grantor whether tangible
\nor intangible and whether now or hereafter owned or existing, leased, consigned
\nby or to, or acquired by, Grantor and wherever located; and<\/p>\n
(o) To the extent not otherwise included, all Proceeds of each of the
\nforegoing and all accessions to, substitutions and replacements for, and rents,
\nprofits and products of each of the foregoing (it being understood that,
\nnotwithstanding the foregoing, the Collateral shall not include (a) any
\nequipment leased from or financed by third parties to the extent the contracts
\nevidencing such lease or financing prohibit the granting by Grantor of any
\nsecurity interest therein (together with accessions,<\/p>\n
Exhibit A
\n Page 1 of 5<\/p>\n
attachments, improvements, replacements and proceeds thereof), and (b) any
\nrights of Grantor under any license or contract if, and to the extent, the
\ngranting of a security interest therein in favor of Bank would violate the terms
\nof such license or contract only to the extent and for so long as such
\nprohibition is in effect.)<\/p>\n
B. DEFINED TERMS. Unless otherwise defined herein, the following terms
\nshall have the following meanings (such meanings being equally applicable to
\nboth the singular and plural forms of the terms defined):<\/p>\n
“ACCOUNTS” means any “account,” as such term is defined in Section 9106 of
\nthe UCC, now owned or hereafter acquired by Grantor and, in any event, shall
\ninclude, without limitation, all accounts receivable, book debts and other forms
\nof obligations (other than forms of obligations evidenced by Chattel Paper,
\nDocuments or Instruments) now owned or hereafter received or acquired by or
\nbelonging or owing to Grantor (including, without limitation, under any trade
\nname, style or division thereof) whether arising out of goods sold or services
\nrendered by Grantor or from any other transaction, whether or not the same
\ninvolves the sale of goods or services by Grantor (including, without
\nlimitation, any such obligation which may be characterized as an account or
\ncontract right under the UCC) and all of Grantor’s rights in, to and under all
\npurchase orders or receipts now owned or hereafter acquired by it for goods or
\nservices, and all of Grantor’s rights to any goods represented by any of the
\nforegoing (including, without limitation, unpaid seller’s rights of rescission,
\nreplevin, reclamation and stoppage in transit and rights to returned, reclaimed
\nor repossessed goods), and all monies due or to become due to Grantor under all
\npurchase orders and contracts for the sale of goods or the performance of
\nservices or both by Grantor (whether or not yet earned by performance on the
\npart of Grantor or in connection with any other transaction), now in existence
\nor hereafter occurring, including, without limitation, the right to receive the
\nproceeds of said purchase orders and contracts, and all collateral security and
\nguarantees of any kind given by any person or entity with respect to any of the
\nforegoing.<\/p>\n
“CHATTEL PAPER” means any “chattel paper,” as such term is defined in
\nSection 9105(1)(b) of the UCC, now owned or hereafter acquired by Grantor.<\/p>\n
“CONTRACTS” means all contracts, undertakings, franchise agreements or other
\nagreements (other than rights evidenced by Chattel Paper, Documents or
\nInstruments) in or under which Grantor may now or hereafter have any right,
\ntitle or interest, including, without limitation, with respect to an Account,
\nany agreement relating to the terms of payment or the terms of performance
\nthereof.<\/p>\n
“COPYRIGHT LICENSE” means all of the following now owned or hereafter
\nacquired by Grantor: any agreement granting any right in or to any Copyright or
\nCopyright registration (whether Grantor is the licensee or the licensor
\nthereunder) including, without limitation, licenses pursuant to which Grantor
\nhas obtained the exclusive right to use a copyright owned by a third party.<\/p>\n
“COPYRIGHTS” means all of the following in which Grantor now holds or
\nhereafter acquires any interest: (i) all copyrights, whether registered or
\nunregistered, held pursuant to the laws of the United States, any state thereof
\nor of any other country; (ii) registrations, applications and recordings in the
\nUnited States Copyright Office or in any similar office or agency of the United
\nStates, any state thereof or any other country or political subdivision thereof;
\n(iii) any continuations, renewals or extensions thereof; (iv) any registrations
\nto be issued in any pending applications; (v) prior versions of works covered by
\ncopyright and all works based upon, derived from, or incorporating such works;
\n(vi) income, royalties, damages, claims, and payments now and hereafter due and
\npayable with respect to copyrights including, without limitation, damages and
\npayments for past, present, or<\/p>\n
Exhibit A
\n Page 2 of 5<\/p>\n
future infringement; (vii) rights to sue for past, present and future
\ninfringements of copyright; and (viii) any other rights corresponding to any of
\nthe foregoing rights throughout the world.<\/p>\n
“DEPOSIT ACCOUNT” means any “deposit account” as such term is defined in
\nSection 9105(e) of the UCC, and should include, without limitation, any demand,
\ntime, savings passbook or like account, now or hereafter maintained by or for
\nthe benefit of Grantor, or in which Grantor now holds or hereafter acquires any
\ninterest, with a bank, savings and loan association, credit union or like
\norganization (including Bank) and all funds and amounts therein, whether or not
\nrestricted or designated for a particular purpose.<\/p>\n
“DOCUMENTS” means any “documents,” as such term is defined in Section
\n9105(1)(f) of the UCC, now owned or hereafter acquired by Grantor.<\/p>\n
“EQUIPMENT” means any “equipment,” as such term is defined in Section
\n9109(2) of the UCC, now or hereafter owned or acquired by Grantor and, in any
\nevent, shall include, without limitation, all machinery, equipment, furnishings,
\nvehicles, computers and other electronic data-processing and any other office
\nequipment of any nature whatsoever, any and all additions, substitutions and
\nreplacements of any of the foregoing, wherever located, together with all
\nattachments, components, parts, equipment and accessories installed thereon or
\naffixed thereto.<\/p>\n
“FIXTURES” means “fixtures,” as such term is defined in Section 9313(1)(a)
\nof the UCC, now or hereafter owned or acquired by Grantor and, in any event,
\nshall include, without limitation, regardless of where located, all of the
\nfixtures, systems, machinery, apparatus, equipment and fittings of every kind
\nand nature whatsoever and all appurtenances and additions thereto and
\nsubstitutions or replacements thereof, now or hereafter attached or affixed to
\nor constituting a part of, or located in or upon, real property wherever
\nlocated, including, without limitation, all heating, electrical, mechanical,
\nlighting, lifting, plumbing, ventilating, air-conditioning and air cooling,
\nrefrigerating, food preparation, incinerating and power, loading and unloading,
\nsigns, escalators, elevators, boilers, communications, switchboards, sprinkler
\nand other fire prevention and extinguishing fixtures, systems, machinery,
\napparatus and equipment, and all engines, motors, dynamos, machinery, pipes,
\npumps, tanks, conduits and ducts constituting a part of any of the foregoing,
\ntogether with all right, title and interest of Grantor in and to all extensions,
\nimprovements, betterments, renewals, substitutes, and replacements of, and all
\nadditions and appurtenances to any of the foregoing property, and all
\nconversions of the security constituted thereby, immediately upon any
\nacquisition or release thereof or any such conversion, as the case may be.<\/p>\n
“GENERAL INTANGIBLES” means any “general intangibles,” as such term is
\ndefined in Section 9106 of the UCC, now owned or hereafter acquired by Grantor
\nand, in any event, shall include, without limitation, all right, title and
\ninterest which Grantor may now or hereafter have in or under any Contract, all
\nIntellectual Property, interests in partnerships, joint ventures and other
\nbusiness associations, Licenses, permits, goodwill (including, without
\nlimitation, the goodwill associated with any Trademark, Trademark registration
\nor Trademark licensed under any Trademark License), claims in or under insurance
\npolicies, including unearned premiums, uncertificated securities, deposit
\naccounts, rights to receive tax refunds and other payments and rights of
\nindemnification.<\/p>\n
“INSTRUMENTS” means any “instrument,” as such term is defined in Section
\n9105(1)(i) of the UCC now owned or hereafter acquired by Grantor, including,
\nwithout limitation, all notes, certificated securities, and other evidences of
\nindebtedness, other than instruments that constitute, or are a part of a group
\nof writings that constitute, Chattel Paper.<\/p>\n
Exhibit A
\n Page 3 of 5<\/p>\n
“INTELLECTUAL PROPERTY” means all Copyrights, Patents, Trademarks, trade
\nsecrets, customer lists, proprietary or confidential information, inventions
\n(whether or not patented or patentable), technical information, procedures,
\ndesigns, knowledge, know-how, software, data bases, data, skill, expertise,
\nrecipes, experience, processes, models, drawings, materials and records.<\/p>\n
“INVENTORY” means any “inventory,” as such term is defined in Section
\n9109(4) of the UCC, wherever located, now or hereafter owned or acquired by,
\nGrantor and, in any event, shall include, without limitation, all inventory,
\nmerchandise, goods and other personal property which are held by or on behalf of
\nGrantor for sale or lease or are furnished or are to be furnished under a
\ncontract of service or which constitute raw materials, work in process or
\nmaterials used or consumed or to be used or consumed in Grantor’s business, or
\nthe processing, packaging, promotion, delivery or shipping of the same, and all
\nfurnished goods whether or not such inventory is listed on any schedules,
\nassignments or reports furnished to Bank from time to time and whether or not
\nthe same is in transit or in the constructive, actual or exclusive occupancy or
\npossession of Grantor or is held by Grantor or by others for Grantor’s account,
\nincluding, without limitation, all goods covered by purchase orders and
\ncontracts with suppliers and all goods billed and held by suppliers and all
\ninventory which may be located on premises of Grantor or of any carriers,
\nforwarding agents, truckers, warehousemen, vendors, selling agents or other
\npersons.<\/p>\n
“INVESTMENT PROPERTY” means any “investment property,” as such term is
\ndefined in Section 9115(1)(f) of the UCC, now owned or hereafter acquired by
\nGrantor, including, without limitation, a security, whether certificated or
\nuncertificated, a security entitlement, a securities account, a commodity
\ncontract or a commodity account.<\/p>\n
“LICENSE” means any Copyright License, Patent License, Trademark License or
\nother license of rights or interests now held or hereafter acquired by Grantor.<\/p>\n
“LOAN ACCOUNT” shall have the meaning ascribed to it in the Loan Agreement.<\/p>\n
“LOAN DOCUMENTS” shall have the meaning ascribed to it in the Loan
\nAgreement.<\/p>\n
“PATENT LICENSE” means any of the following now owned or hereafter acquired
\nby Grantor: any written agreement granting any right with respect to any
\ninvention on which a Patent is in existence.<\/p>\n
“PATENTS” means all of the following in which Grantor now holds or
\nhereafter acquires any interest: (a) letters patent of the United States or any
\nother county, all registrations and recordings thereof, and all applications for
\nletters patent of the United States or any other country, including, without
\nlimitation, registrations, recordings and applications in the United States
\nPatent and Trademark Office or in any similar office or agency of the United
\nStates, any State thereof or any other country or any political subdivision
\nthereof; (b) all reissues, continuations, continuations-in-part or extensions
\nthereof; (c) all petty patents, divisionals, and patents of addition; and (d)
\nall patents to issue in any such applications.<\/p>\n
“PROCEEDS” means “proceeds,” as such term is defined in Section 9-306(1) of
\nthe UCC and, in any event, shall include, without limitation, (a) any and all
\nAccounts, Chattel Paper, Instruments, cash or other proceeds payable to Grantor
\nfrom time to time in respect of the Collateral, (b) any and all proceeds of any
\ninsurance, indemnity, warranty or guaranty payable to Grantor from time to time
\nwith respect to any of the Collateral, (c) any and all payments (in any form
\nwhatsoever) made or due and payable to Grantor from time to time in connection
\nwith any requisition, confiscation, condemnation, seizure or forfeiture of all
\nor any part of the Collateral above by any governmental body, authority, bureau
\nor agency (or any person acting under color of governmental authority), (d) any
\nclaim of Grantor against third parties (i) for past, present or future
\ninfringement<\/p>\n
Exhibit A
\n Page 4 of 5<\/p>\n
of any Patent or Patent License, (ii) for past, present or future infringement
\nof any Copyright or Copyright License, (iii) for past, present or future
\ninfringement or dilution of any Trademark or Trademark License or for injury to
\nthe goodwill associated with any Trademark, Trademark registration or Trademark
\nlicensed under any Trademark License, (e) all certificates, dividends, cash,
\nInstruments and other property received or distributed in respect of or in
\nexchange for any Investment Property and (f) any and all other amounts from time
\nto time paid or payable under or in connection with any of the Collateral or any
\nContract.<\/p>\n
“TRADEMARK LICENSE” means any written agreement granting any right in and
\nto any Trademark or Trademark registration (whether Grantor is the licensee or
\nthe licensor thereunder).<\/p>\n
“TRADEMARKS” means any of the following now owned or hereafter acquired by
\nGrantor: (a) any and all trademarks, trade names, corporate names, company
\nnames, business names, trade styles, service marks, logos, other source or
\nbusiness identifiers, prints and labels on which any of the foregoing have
\nappeared or appear, designs and general intangibles of like nature, now existing
\nor hereafter adopted or acquired, all registrations and recordings thereof, and
\nany applications in connection therewith, including, without limitation,
\nregistrations, recordings and applications in the United States Patent and
\nTrademark Office or in any similar office or agency of the United States, any
\nstate thereof or any other country or any political subdivision thereof (the
\n“Marks”), (b) any reissues, extensions or renewals thereof, (c) the goodwill of
\nthe business symbolized by or associated with Marks, (d) income, royalties,
\ndamages and payments now and hereafter due and\/or payable with respect to Marks,
\nincluding, without limitation, damages, claims and recoveries for past, present
\nor future infringement, misappropriation, or dilution, and (e) rights to sue for
\npast, present and future infringements of Marks.<\/p>\n
“UCC” means the Uniform Commercial Code as the same may, from time to time,
\nbe in effect in the State of California; PROVIDED, HOWEVER, in the event that,
\nby reason of mandatory provisions of law, any or all of the attachment,
\nperfection or priority of Bank’s security interest in any collateral is governed
\nby the Uniform Commercial Code as in effect in a jurisdiction other than the
\nState of California, the term “UCC” shall mean the Uniform Commercial Code as in
\neffect in such other jurisdiction for purposes of the provisions hereof relating
\nto such attachment, perfection of priority and for purposes of definitions
\nrelated to such provisions.<\/p>\n
Exhibit A
\n Page 5 of 5<\/p>\n
EXHIBIT B<\/p>\n
LOCATION OF COLLATERAL NOT IN BANK’S POSSESSION<\/p>\n
1. 25 Orinda Way, Orinda, California 94563.<\/p>\n
2. PLEASE ADD OTHER ADDRESS LOCATIONS, IF ANY. IF NONE, PLEASE INDICATE
\n“NONE” BELOW:<\/p>\n
Exhibit B<\/p>\n
COLLATERAL ASSIGNMENT AS COLLATERAL, PATENT
\n MORTGAGE AND SECURITY AGREEMENT<\/p>\n
THIS COLLATERAL ASSIGNMENT AS COLLATERAL, PATENT MORTGAGE AND SECURITY
\nAGREEMENT is made as of July 29, 1998 (“SECURITY AGREEMENT”), by and between
\nINTRAWARE, INC., a Delaware corporation (“DEBTOR”), and IMPERIAL BANK (“BANK”).<\/p>\n
RECITALS<\/p>\n
A. Bank has agreed to lend to Debtor certain funds (the “LOAN”), and
\nDebtor desires to borrow such funds from Bank pursuant to the terms of a Loan
\nAgreement dated of even date herewith (as the same may be modified, amended,
\nsupplemented, restated or superceded from time to time, the “LOAN AGREEMENT”).
\nTerms not defined herein shall the meanings ascribed to them in the General
\nSecurity Agreement.<\/p>\n
B. In order to induce Bank to make the Loan, Debtor has agreed to assign
\nas collateral certain intangible property to Bank for purposes of securing the
\nobligations of Debtor to Bank.<\/p>\n
NOW, THEREFORE, the parties hereto agree as follows:<\/p>\n
1. COLLATERAL ASSIGNMENT, PATENT MORTGAGE AND GRANT OF SECURITY INTEREST.
\nAs collateral security for the prompt and complete payment and performance of
\nall of Debtor’s present or future indebtedness, obligations and liabilities to
\nBank, including, without limitation, such indebtedness, obligations and
\nliabilities under the Loan Agreement and the other documents executed in
\nconnection therewith (as the same may be modified, amended, supplemented,
\nrestated or superceded from time to time, collectively, the “LOAN DOCUMENTS”),
\nDebtor hereby assigns as collateral, transfers, conveys and grants a security
\ninterest and mortgage to Bank, as security, in and to Debtor’s entire right,
\ntitle and interest in, to and under the following, now or hereafter existing,
\ncreated, acquired or held by Debtor (all of which shall collectively be called
\nthe “COLLATERAL”):<\/p>\n
(a) Any and all copyright rights, copyright applications, copyright
\nregistrations and like protections in each work of authorship and derivative
\nwork thereof, whether published or unpublished and whether or not the same also
\nconstitutes a trade secret, including, without limitation, those set forth on
\nEXHIBIT A attached hereto and incorporated herein by this reference
\n(collectively, the “COPYRIGHTS”).<\/p>\n
(b) Any and all trade secrets, and any and all intellectual property
\nrights in computer software and computer software products;<\/p>\n
(c) Any and all design rights which may be available to Debtor;<\/p>\n
(d) All patents, patent applications and like protections including,
\nwithout limitation, improvements, divisions, continuations, renewals, reissues,
\nextensions and continuations-in-part of the same, including, without limitation,
\nthose set forth on EXHIBIT B attached hereto and incorporated herein by this
\nreference (collectively, the “PATENTS”);<\/p>\n
(e) Any trademark and servicemark rights, whether registered or not,
\napplications to register and registrations of the same and like protections, and
\nthe entire goodwill of the business of<\/p>\n
1.<\/p>\n
Debtor connected with and symbolized by such trademarks, including, without
\nlimitation, those set forth on EXHIBIT C attached hereto and incorporated herein
\nby this reference (collectively, the “TRADEMARKS”);<\/p>\n
(f) Any and all claims for damages by way of past, present and future
\ninfringement of any of the rights included above, with the right, but not the
\nobligation, to sue for and collect such damages for said use or infringement of
\nthe intellectual property rights identified above;<\/p>\n
(g) All licenses or other rights to use any of the Copyrights,
\nPatents or Trademarks, and all license fees and royalties arising from such use
\nto the extent permitted by such license or rights;<\/p>\n
(h) All amendments, renewals and extensions of any of the Copyrights,
\nPatents or Trademarks; and<\/p>\n
(i) All proceeds and products of the foregoing, including, without
\nlimitation, all payments under insurance or any indemnity or warranty payable in
\nrespect of any of the foregoing.<\/p>\n
THE INTEREST IN THE COLLATERAL BEING ASSIGNED HEREUNDER SHALL NOT BE
\nCONSTRUED AS A CURRENT ASSIGNMENT, BUT AS A CONTINGENT ASSIGNMENT TO SECURE ALL
\nOF DEBTOR’S PRESENT OR FUTURE INDEBTEDNESS, OBLIGATIONS AND LIABILITIES TO BANK,
\nINCLUDING, WITHOUT LIMITATION, SUCH INDEBTEDNESS, OBLIGATIONS AND LIABILITIES
\nUNDER THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS.<\/p>\n
2. AUTHORIZATION AND REQUEST. Debtor authorizes and requests that the
\nRegister of Copyrights and the Commissioner of Patents and Trademarks record
\nthis Security Agreement.<\/p>\n
3. COVENANTS AND WARRANTIES. Debtor represents, warrants, covenants and
\nagrees as follows:<\/p>\n
(a) Debtor is now the sole owner of the Collateral, except for
\nnon-exclusive licenses granted by Debtor to its customers in the ordinary and
\nnormal course of business as now conducted;<\/p>\n
(b) Performance of this Security Agreement does not conflict with or
\nresult in a breach of any agreement to which Debtor is a party or by which
\nDebtor is bound, except to the extent that certain intellectual property
\nagreements prohibit the assignment of the rights thereunder to a third party
\nwithout the licensor’s or other party’s consent and this Security Agreement
\nconstitutes as assignment;<\/p>\n
(c) During the term of this Security Agreement, Debtor will not sell,
\ntransfer, assign or otherwise encumber any interest in the Collateral, except
\nfor (i) non-exclusive licenses granted by Debtor in the ordinary and normal
\ncourse of its business as now conducted or as set forth in this Security
\nAgreement and (ii) subject to Debtor’s execution of appropriate documents, in
\nform acceptable to Bank, to perfect or continue the perfection of Bank’s
\ninterest in the Collateral, transfers to affiliates of Debtor;<\/p>\n
(d) To its knowledge, each of the Patents is valid and enforceable,
\nand no part of the Collateral has been judged invalid or unenforceable, in whole
\nor in part, and no claim has been made that any part of the Collateral violates
\nthe rights of any third party;<\/p>\n
(e) Debtor shall promptly advise Bank of any material changes in the
\ncomposition of the Collateral, including but not limited to any subsequent
\nownership right of Debtor in or to any Copyright, Patent or Trademark not
\nspecified in this Security Agreement;<\/p>\n
2.<\/p>\n
(f) Debtor shall (i) protect, defend and maintain the validity and
\nenforceability of the Copyrights, Patents and Trademarks, (ii) use its best
\nefforts to detect infringements of the Copyrights, Patents and Trademarks and
\npromptly advise Bank in writing of material infringements detected and (iii) not
\nallow any Copyrights, Patents or Trademarks to be abandoned, forfeited or
\ndedicated to the public without the written consent of Bank, which shall not be
\nunreasonably withheld, unless Debtor determines that reasonable business
\npractices suggest that abandonment is appropriate;<\/p>\n
(g) Debtor shall promptly register the most recent version of
\nDebtor’s material Copyrights, if not so already registered, as Bank may
\nreasonably request from time to time based on its review of the Quarterly Report
\n(as hereinafter defined) and shall, from time to time, execute and file such
\nother instruments, and take such further actions as Bank may reasonably request
\nfrom time to time to perfect or continue the perfection of Bank’s interest in
\nthe Collateral;<\/p>\n
(h) This Security Agreement creates, and in the case of after
\nacquired Collateral, this Security Agreement will create at the time Debtor
\nfirst has rights in such after acquired Collateral, in favor of Bank a valid and
\nperfected first priority security interest in the Collateral in the United
\nStates securing the payment and performance of all present or future
\nindebtedness, obligations and liabilities of Debtor to Bank, including, without
\nlimitation, such indebtedness, obligations and liabilities under the Loan
\nAgreement and the other Loan Documents, upon making the filings referred to in
\nSECTION 3(i) below, subject only to Permitted Liens (as defined in the Loan
\nAgreement);<\/p>\n
(i) To its knowledge, except for, and upon, the filings with, as
\napplicable, (1) the United States Patent and Trademark office with respect to
\nthe Patents and Trademarks, (2) the Register of Copyrights with respect to the
\nCopyrights and (3) the UCC Division of the California Secretary of State,
\nnecessary to perfect the security interests and assignment as collateral created
\nhereunder, and except as has been already made or obtained, no authorization,
\napproval or other action by, and no notice to or filing with, any United States
\ngovernmental authority or United States regulatory body is required either (a)
\nfor the grant by Debtor of the security interest granted hereby or for the
\nexecution, delivery or performance of this Security Agreement by Debtor in the
\nUnited States or (b) for the perfection in the United States or the exercise by
\nBank of its rights and remedies hereunder;<\/p>\n
(j) All information heretofore, herein or hereafter supplied to Bank
\nby or on behalf of Debtor with respect to the Collateral is accurate and
\ncomplete in all material respects;<\/p>\n
(k) Debtor shall not enter into any agreement that would materially
\nimpair or conflict with Debtor’s obligations hereunder without Bank’s prior
\nwritten consent, which consent shall not be unreasonably withheld. Debtor shall
\nnot permit the inclusion in any material contract to which it becomes a party of
\nany provisions that could or might in any way prevent the creation of a security
\ninterest in Debtor’s rights and interests in any property included within the
\ndefinition of the Collateral acquired under such contracts, except that certain
\ncontracts may contain anti-assignment provisions that could in effect prohibit
\nthe creation of a security interest in such contracts; and<\/p>\n
(l) Upon any executive officer of Debtor obtaining actual knowledge
\nthereof, Debtor will promptly notify Bank in writing of any event that
\nmaterially adversely affects the value of any Collateral, the ability of Debtor
\nto dispose of any Collateral or the rights and remedies of Bank in relation
\nthereto, including the levy of any legal process against any of the Collateral.<\/p>\n
4. BANK’S RIGHTS. Bank shall have the right, but not the obligation, to
\ntake, at Debtor’s sole expense, any actions that Debtor is required under this
\nSecurity Agreement to take but which Debtor fails to take, after fifteen (15)
\ndays’ notice to Debtor. Debtor shall reimburse and indemnify Bank for all<\/p>\n
3.<\/p>\n
reasonable costs and reasonable expenses incurred in the reasonable exercise of
\nits rights under this SECTION 4.<\/p>\n
5. INSPECTION RIGHTS. Debtor hereby grants to Bank and its employees,
\nrepresentatives and agents the right to visit, during reasonable hours upon
\nprior reasonable written notice to Debtor, any of Debtor’s plants and facilities
\nthat manufacture, install or store products (or that have done so during the
\nprior six-month period) that are sold utilizing any of the Collateral, and to
\ninspect the products and quality control records relating thereto upon
\nreasonable written notice to Debtor and as often as may be reasonably requested.<\/p>\n
6. FURTHER ASSURANCES; ATTORNEY IN FACT.<\/p>\n
(a) On a quarterly basis, Debtor agrees to deliver to Bank a report,
\nin form acceptable to Bank and certified by an officer of Debtor, which lists
\nall Copyrights, Patents and Trademarks that are material to the operation of
\nDebtor’s business on an on-going basis, and in which Bank does not already have
\na perfected security interest (the “QUARTERLY REPORT”); PROVIDED, HOWEVER,
\nDebtor may provide a general description of the Copyrights by type. Based upon
\nreview of the Quarterly Report, Bank shall, in its reasonable discretion,
\nidentify which Copyrights, Patents and Trademarks it deems material to the
\noperation of Debtor’s business on an on-going basis or the value of the
\nCollateral.<\/p>\n
(b) On a continuing basis, Debtor will make, execute, acknowledge and
\ndeliver, and file and record in the proper filing and recording places in the
\nUnited States, all such instruments, including appropriate financing and
\ncontinuation statements and collateral agreements and filings with the United
\nStates Patent and Trademark Office and the Register of Copyrights, and take all
\nsuch action as may reasonably be necessary or advisable, or as reasonably
\nrequested by Bank, to perfect Bank’s security interest in all Copyrights,
\nPatents and Trademarks, which Bank reasonably identifies pursuant to SECTION
\n6(a) above as material to the operation of Debtor’s business on an on-going
\nbasis or the value of the Collateral, and otherwise to carry out the intent and
\npurposes of this Security Agreement, or for assuring and confirming to Bank the
\ngrant or perfection of a security interest in all Collateral.<\/p>\n
(c) Debtor hereby irrevocably appoints Bank as Debtor’s
\nattorney-in-fact, with full authority in the place and stead of Debtor and in
\nthe name of Debtor, from time to time in Bank’s discretion, to take any action
\nand to execute any instrument which Bank may reasonably deem necessary or
\nadvisable to accomplish the purposes of this Security Agreement, including (i)
\nto modify, in its reasonable discretion, this Security Agreement without first
\nobtaining Debtor’s approval of or signature to such modification by amending
\nExhibit A, Exhibit B or Exhibit C hereof, as appropriate, to include reference
\nto any material right, title or interest in any Copyrights, Patents or
\nTrademarks acquired by Debtor after the execution hereof or to delete any
\nreference to any right, title or interest in any Copyrights, Patents or
\nTrademarks in which Debtor no longer has or claims any right, title or interest,
\n(ii) to file, in its reasonable discretion, one or more financing or
\ncontinuation statements and amendments thereto, relative to any of the
\nCollateral without the signature of Debtor where permitted by law and (iii)
\nafter the occurrence and during the continuance of an Event of Default, to
\ntransfer the Collateral into the name of Bank or a third party to the extent
\npermitted under the California Uniform Commercial Code.<\/p>\n
4.<\/p>\n
7. EVENTS OF DEFAULT. The occurrence of any of the following shall
\nconstitute an “EVENT OF DEFAULT” under this Security Agreement:<\/p>\n
(a) An Event of Default (as defined in the Loan Agreement) occurs
\nunder the Loan Agreement or any of the other Loan Documents (as defined in the
\nLoan Agreement); or<\/p>\n
(b) Debtor breaches any warranty or agreement in any material respect
\nmade by Debtor in this Security Agreement and, as to any breach that is capable
\nof cure, Debtor fails to cure such breach within fifteen (15) days of the
\noccurrence of such breach if notice thereof has been given to Debtor.<\/p>\n
8. REMEDIES. Upon the occurrence and during the continuance of an Event
\nof Default, Bank shall have the right to exercise all the remedies of a secured
\nparty under the California Uniform Commercial Code, including, without
\nlimitation, the right to require Debtor to assemble the Collateral and any
\ntangible property in which Bank has a security interest and to make it available
\nto Bank at a place designated by Bank. Bank shall have a nonexclusive, royalty
\nfree license to use the Copyrights, Patents and Trademarks to the extent
\nreasonably necessary to permit Bank to exercise its rights and remedies upon the
\noccurrence and during the continuance of an Event of Default. Debtor will pay
\nany expenses (including reasonable attorneys’ fees) incurred by Bank in
\nconnection with the exercise of any of Bank’s rights hereunder, including,
\nwithout limitation, any expense incurred in disposing of the Collateral. All of
\nBank’s rights and remedies with respect to the Collateral shall be cumulative.<\/p>\n
9. INDEMNITY. Debtor agrees to defend, indemnify and hold harmless Bank
\nand its officers, employees, and agents against: (a) all obligations, demands,
\nclaims, and liabilities claimed or asserted by any other party in connection
\nwith the transactions contemplated by this Security Agreement and (b) all losses
\nor expenses in any way suffered, incurred, or paid by Bank as a result of or in
\nany way arising out of, following or consequential to transactions between Bank
\nand Debtor, whether under this Security Agreement or otherwise (including,
\nwithout limitation, reasonable attorneys’ fees and reasonable expenses), except
\nfor losses arising from or out of Bank’s gross negligence or willful misconduct.<\/p>\n
10. REASSIGNMENT. At such time as Debtor shall completely satisfy all of
\nthe obligations secured hereunder, Bank shall execute and deliver to Debtor all
\ndeeds, assignments as collateral and other instruments as may be necessary or
\nproper to revest in Debtor full title to the property assigned as collateral
\nhereunder, subject to any disposition thereof which may have been made by Bank
\npursuant hereto.<\/p>\n
11. NO FAILURE OR DELAY. No failure or delay on the part of Bank, in the
\nexercise of any power, right or privilege hereunder shall operate as a waiver
\nthereof, nor shall any single or partial exercise thereof.<\/p>\n
12. ATTORNEYS’ FEES. If any action relating to this Security Agreement is
\nbrought by either party hereto against the other party, the prevailing party
\nshall be entitled to recover reasonable attorneys’ fees, costs and
\ndisbursements.<\/p>\n
13. AMENDMENTS. This Security Agreement may be amended only by a written
\ninstrument signed by both parties hereto.<\/p>\n
14. COUNTERPARTS. This Security Agreement may be executed in any number
\nof counterparts, each of which when so delivered shall be deemed an original,
\nbut all such counterparts shall constitute but one and the same instrument.
\nEach such Security Agreement shall become effective upon<\/p>\n
5.<\/p>\n
the execution of a counterpart hereof or thereof by each of the parties hereto
\nand telephonic notification that such executed counterparts has been received by
\nDebtor and Bank.<\/p>\n
15. JUDICIAL REFERENCE. The terms and provisions of SECTION 15 of the
\nLoan Agreement are incorporated herein by this reference and made a part hereof.<\/p>\n
16. GOVERNING LAW; JURISDICTION; JURY WAIVER. This Security Agreement
\nshall be governed by, and construed in accordance with, the internal laws of the
\nState of California, without regard to principles of conflicts of law. Debtor
\nand Bank consent to the exclusive jurisdiction of any state or federal court
\nlocated in Santa Clara County, California. DEBTOR AND BANK EACH WAIVE THEIR
\nRESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
\nARISING OUT OF THIS SECURITY AGREEMENT AND ANY OTHER LOAN DOCUMENT OR ANY OF THE
\nTRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
\nOF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.<\/p>\n
17. CONFLICT. In the event of a conflict between any term and\/or
\nprovision contained in this Security Agreement with any term and\/or provision
\ncontained in the General Security Agreement (as defined in the Loan Agreement),
\nthe term and\/or provision of this Security Agreement shall govern.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Security
\nAgreement on the day and year first above written.<\/p>\n
BANK DEBTOR<\/p>\n
IMPERIAL BANK INTRAWARE, INC.,
\n a Delaware corporation<\/p>\n
By: \/s\/ Sunita R. Patel By: \/s\/ Donald Freed
\n —————————- ——————————–
\n Sunita R. Patel Donald Freed
\n Assistant Vice President Executive Vice President and
\n Chief Financial Officer<\/p>\n
ADDRESS OF BANK ADDRESS OF DEBTOR<\/p>\n
226 Airport Parkway 25 Orinda Way
\nSan Jose, California 95110 Orinda, California 94563
\n Attention: Donald Freed
\nWITH A COPY TO:<\/p>\n
2460 Sand Hill Road, Suite 102
\nMenlo Park, California 94025
\nAttention: Sunita Patel<\/p>\n
6.<\/p>\n
EXHIBIT A<\/p>\n
COPYRIGHTS<\/p>\n
1. REGISTERED: List titles below or indicate “None”<\/p>\n
see attached<\/p>\n
2. UNREGISTERED: List titles below or indicate “None”<\/p>\n
see attached<\/p>\n
3. APPLICATIONS IN PROCESS: List titles, applicable dates, application
\n numbers, etc. below or indicate “None”<\/p>\n
see attached<\/p>\n
Exhibit A
\n Page 1 of 1<\/p>\n
EXHIBIT B<\/p>\n
U.S. PATENTS AND PATENT APPLICATIONS<\/p>\n
(List titles below or indicate “None”)<\/p>\n
\n\n——————————————————————————–
\n——————————————————————————–
\n PATENT PENDING TITLE ISSUE FILING
\n NO. APPLICATION NO. DATE DATE<\/p>\n——————————————————————————–
\n
\n see attached
\n——————————————————————————–<\/p>\n——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–
\n——————————————————————————–<\/p>\n
<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Exhibit B
\n Page 1 of 1<\/p>\n
EXHIBIT C<\/p>\n
U.S. TRADEMARKS AND TRADEMARK APPLICATIONS<\/p>\n
(List marks below or indicate “None”)<\/p>\n
\n\n——————————————————————————–
\n——————————————————————————–
\nREGISTRATION PENDING MARK REGISTRATION FILING
\n NO. APPLICATION DATE DATE
\n NO.<\/p>\n——————————————————————————–
\n
\n see attached
\n——————————————————————————–<\/p>\n——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–
\n——————————————————————————–<\/p>\n
<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
UNREGISTERED TRADEMARKS: List marks below or indicate “None.”<\/p>\n
Exhibit C
\n Page 1 of 1<\/p>\n
6. The corporation owns the following domestic and foreign registered and
\n applied for trademarks, tradenames and service marks:<\/p>\n
\n\n Trademarks, Tradenames, or Service Marks Registration or Application No.
\n —————————————- ——————————-
\n
\nIntraware Trademark Application in the
\nEuropean Community pending<\/p>\n VirtualExpress Trademark Application
\nin US S\/N’s: 75\/429,571<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
7. The corporation owns the following domestic and foreign copyrights and
\n copyright registrations:<\/p>\n
\n\n Description of Copyright Registration or Application No.
\n ———————— ——————————-
\n
\n Compariscope Content TX 4-716-466
\n effective 5\/8\/98<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
8. The corporation anticipates that it may apply to register the following
\n domestic or foreign patents within the next year:<\/p>\n
Brief Description of Patent
\n —————————<\/p>\n
None<\/p>\n
9. The corporation anticipates that it may apply to register the following
\n domestic or foreign trademarks, tradenames or service marks within the next
\n year:<\/p>\n
Trademarks, Tradenames or Service Marks
\n —————————————<\/p>\n
Trademarks – Radarscope U.S.<\/p>\n
SubscribNet – Foreign (European Community)
\n Compariscope – Foreign (European Community)<\/p>\n
10. The corporation anticipates that it may apply to register the following
\n domestic or foreign copyrights and copyright registrations within the next
\n year:<\/p>\n
Description of Copyright
\n ————————<\/p>\n
Quarterly Copyrights of Compariscope<\/p>\n
11. The corporation’s federal employer I.D. number is: 68-0389976
\n ———————–<\/p>\n
2.<\/p>\n
6. continued<\/p>\n
Compariscope Trademark Application in US S\/N’s: 75\/429, 528<\/p>\n
SubscribNews Trademark Application in US S\/N’s: 75\/429, 171<\/p>\n
ExtraDocs Trademark Application in US S\/N’s: 75\/429, 148<\/p>\n
IntraLease Trademark Application in US 75\/359,462<\/p>\n
intraware.shop Trademark Application in US pending<\/p>\n
SubscribNet 75\/247,313<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7840,7907],"corporate_contracts_industries":[9415],"corporate_contracts_types":[9560,9567],"class_list":["post-41110","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imperial-bank","corporate_contracts_companies-intraware-inc","corporate_contracts_industries-financial__banks","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41110","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41110"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41110"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41110"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41110"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}