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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
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TABLE OF CONTENTS
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1 ACCOUNTING AND OTHER TERMS. . . . . . . . . . . . . . . . . . . . . . 1
2 LOAN AND TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Credit Extensions. . . . . . . . . . . . . . . . . . . . . . . . 1
2.1.1 Revolving Advances.. . . . . . . . . . . . . . . . . . 1
2.1.2 Letters of Credit. . . . . . . . . . . . . . . . . . . 2
2.2 Overadvances . . . . . . . . . . . . . . . . . . . . . 2
2.3 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 CONDITIONS OF LOANS . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Conditions Precedent to Initial Credit Extension . . . . . . . . 2
3.2 Conditions Precedent to all Credit Extensions. . . . . . . . . . 3
4 CREATION OF SECURITY INTEREST . . . . . . . . . . . . . . . . . . . . 3
4.1 Grant of Security Interest . . . . . . . . . . . . . . . . . . . 3
5 REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . 3
5.1 Due Organization and Authorization . . . . . . . . . . . . . . . 3
5.2 Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.4 No Material Adverse Change in Financial Statements . . . . . . . 4
5.5 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.6 Regulatory Compliance. . . . . . . . . . . . . . . . . . . . . . 4
5.7 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.8 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . 4
6 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 4
6.1 Government Compliance. . . . . . . . . . . . . . . . . . . . . . 4
6.2 Financial Statements, Reports, Certificates. . . . . . . . . . . 4
6.3 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.4 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.5 Primary Accounts . . . . . . . . . . . . . . . . . . . . . . . . 5
6.6 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . 5
6.7 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 6
7 NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.1 Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.2 Changes in Business, Ownership, Management or Business
Locations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.3 Mergers or Acquisitions. . . . . . . . . . . . . . . . . . . . . 6
7.4 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.5 Encumbrance. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.6 INVESTMENTS; DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . 6
7.7 Transactions with Affiliates . . . . . . . . . . . . . . . . . . 6
7.8 Subordinated Debt. . . . . . . . . . . . . . . . . . . . . . . . 6
7.9 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.1 Payment Default. . . . . . . . . . . . . . . . . . . . . . . . . 7
8.2 Covenant Default . . . . . . . . . . . . . . . . . . . . . . . . 7
8.3 Material Adverse Change. . . . . . . . . . . . . . . . . . . . . 7
8.4 Attachment . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.5 Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.6 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . 7
8.7 Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.8 Misrepresentations . . . . . . . . . . . . . . . . . . . . . . . 7
9 BANK'S RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . 8
9.1 Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . 8
9.2 Power of Attorney. . . . . . . . . . . . . . . . . . . . . . . . 8
9.3 Accounts Collection. . . . . . . . . . . . . . . . . . . . . . . 8
9.4 Bank Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.5 Bank's Liability for Collateral. . . . . . . . . . . . . . . . . 9
9.6 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . 9
9.7 Demand Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 9
10 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. . . . . . . . . . . . . . 9
12 GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 9
12.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 9
12.2 Indemnification. . . . . . . . . . . . . . . . . . . . . . . .10
12.3 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . .10
12.4 Severability of Provision. . . . . . . . . . . . . . . . . . .10
12.5 Amendments in Writing, Integration . . . . . . . . . . . . . .10
12.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .10
12.7 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . .10
12.8 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . .10
12.9 Attorneys' Fees, Costs and Expenses. . . . . . . . . . . . . .10
12.10 Borrower Waivers . . . . . . . . . . . . . . . . . . . . . . .10
12.11 Joint and Several Liability. . . . . . . . . . . . . . . . . .11
13 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
13.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .11
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
EXHIBIT B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
EXHIBIT C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
EXHIBIT D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
DISBURSEMENT REQUEST AND AUTHORIZATION . . . . . . . . . . . . . . . . . .22
CORPORATE RESOLUTIONS TO BORROW. . . . . . . . . . . . . . . . . . . . . .23
CORPORATE RESOLUTIONS TO BORROW. . . . . . . . . . . . . . . . . . . . . .25
CORPORATE RESOLUTIONS TO BORROW. . . . . . . . . . . . . . . . . . . . . .27
CORPORATE RESOLUTIONS TO BORROW. . . . . . . . . . . . . . . . . . . . . .29
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") dated June 23,
1999, between SILICON VALLEY BANK ("Bank") and SENTO CORPORATION, SENTO
TRAINING CORPORATION, SENTO CONSULTING CORPORATION, and SENTO TECHNICAL
SERVICES CORPORATION (collectively and jointly and severally "Borrower"),
amends and restates the Loan and Security Agreement between the parties dated
February 12, 1999, as amended by amendment to loan and security agreement
dated March 2, 1999, and provides the terms on which Bank will lend to
Borrower and Borrower will repay Bank. The parties agree as follows:
1. ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed
following GAAP Calculations and determinations must be made following GAAP.
The term "financial statements" includes the notes and schedules. The terms
"including" and "includes" always mean "including (or includes) without
limitation" in this or any Loan Document. Capitalized terms in this
Agreement shall have the meanings set forth in Section 13. This Agreement
shall be construed to impart upon Bank a duty to act reasonably at all times.
2. LOAN AND TERMS OF PAYMENT
(1) CREDIT EXTENSIONS. Borrower will pay Bank the unpaid principal
amount of all Credit Extensions and interest on the unpaid principal amount
of the Credit Extensions.
1. REVOLVING ADVANCES.
(1) Bank will make Advances not exceeding (i) the lesser of
the Committed Revolving Line and the Borrowing Base minus (ii) the amount of
all outstanding Letters of Credit (including drawn but unreimbursed Letters
of Credit). Amounts borrowed under this Section may be repaid and reborrowed
during the term of this Agreement.
(2) Interest Rate. Advances accrue interest on the
outstanding principal balance at a per annum rate 2.00 percentage points
above the Prime Rate. After an Event of Default, Obligations accrue interest
at 5 percent above the rate effective immediately before the Event of
Default. The interest rate increases or decreases when the Prime Rate
changes. Interest is computed on a 360 day year for the actual number of days
elapsed.
(3) To Obtain an Advance, Borrower must notify Bank by
facsimile or telephone by 3:00 p.m. Pacific time on the Business Day the
Advance is to be made. Borrower must promptly confirm any telephone
notification by delivering to Bank the Payment/Advance Form attached as
Exhibit B. Bank will credit Advances to Borrower's deposit account. Bank
may make Advances under this Agreement based on instructions from a
Responsible Officer or his or her designee or without instructions if the
Advances are necessary to meet Obligations which have become due. Bank may
rely on any telephone notice given by a person whom Bank believes is a
Responsible Officer or designee. Borrower will indemnify Bank for any loss
Bank suffers due to that reliance.
(4) The Committed Revolving Line terminates on the Revolving
Maturity Date, when all Advances are immediately payable.
2. LETTERS OF CREDIT. Bank will issue or have issued Letters of
Credit for Borrower's account not exceeding (i) the lesser of the Committed
Revolving Line or the Borrowing Base minus (ii) the outstanding principal
balance of the Advances, but the face amount of outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit and any Letter of Credit
Reserve) may not exceed $2,000,000. Each Letter of Credit will expire no
later than one hundred eighty (180) days after the Revolving Maturity Date
provided Borrower's Letter of Credit reimbursement obligation is secured by
cash on terms acceptable to Bank at any time after the Revolving Maturity
Date if the term of this Agreement is not extended by Bank.
(2) OVERADVANCES. If Borrower's Obligations under Section 2.1.1 and
2.1.2 exceed the lesser of either (i) the Committed Revolving Line or (ii) the
Borrowing Base, Borrower must immediately pay in cash to Bank the excess.
Page 1 - LOAN AND SECURITY AGREEMENT
(3) PAYMENTS.
(1) Payments. Interest is payable in arrears on the first of
each month. Bank may debit any of Borrower's deposit accounts including
Account Number 3300099141 for principal and interest payments or any amounts
Borrower owes Bank. Bank will notify Borrower when it debits Borrower's
accounts. These debits are not a set-off. Payments received after 12:00 noon
Pacific time are considered received at the opening of business on the next
Business Day. When a payment is due on a day that is not a Business Day, the
payment is due the next Business Day and additional fees or interest accrue.
(4) FEES. Borrower will pay to Bank:
(1) Facility Fee. A fully earned, non-refundable
facility fee of $2,000 due on the Closing Date; and
(2) Bank Expenses. All Bank Expenses (including
reasonable attorneys' fees and expenses incurred through and after the
Closing Date when due.
2.5 LOCK-BOX ACCOUNT. Borrower shall immediately direct all account
debtors of borrower to make payments to a lock-box account at Bank controlled
by Bank as designated by Bank ("Lock-Box Account"). On a daily basis Bank
shall deposit all proceeds received in the Lock-Box Account into Borrower's
general checking account with Bank. Borrower shall hold any proceeds
received by Borrower from collection of accounts in trust for Bank without
commingling the same with other funds of Borrower and shall turn the same
over to Bank immediately upon receipt in the identical form received. All
credits to Borrower's general checking account shall be conditional upon
final payment to Bank at its own office in cash or solvent credits of the
items giving rise to them and if any item is not so paid, the amount of any
credit given for it shall be charged to any deposit account of Borrower with
Bank or treated as an Advance under this Agreement, whether or not the item
is returned. Borrower shall at the request of Bank notify the account
debtors of the security interest of Bank in any account and Bank may itself
at any time so notify account debtors. Upon the occurrence of an Event of
Default Bank may credit such proceeds deposited to the Lock-Box Account
against the Indebtedness of Borrower upon receipt but to allow time for
clearance of items, interest shall be calculated thereon for the number of
days as computed by the Bank at the interest rate for loans as set forth in
Section 2.1.1(b) of this Agreement; provided, however, that if the balance of
the Indebtedness is zero, Bank shall credit such proceeds to Borrower's
general checking account.
3. CONDITIONS OF LOANS
(1) CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. Bank's
obligation to make the initial Credit Extension is subject to the condition
precedent that it receive the agreements, documents and fees it requires.
(2) CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS. Bank's
obligations to make each Credit Extension, including the initial Credit
Extension, is subject to the following:
(1) timely receipt of any Payment/Advance Form; and
(2) the representations and warranties in Section 5 must
be materially true on the date of the Payment/Advance Form and on the
effective date of each Credit Extension and no Event of Default may have
occurred and be continuing, or result from the Credit Extension. Each Credit
Extension is Borrower's representation and warranty on that date that the
representations and warranties in Section 5 remain true.
(3) the execution by Sento Corporation of the Amendment
to Warrant to Purchase Stock in the form of Exhibit E., incorporated herein
by this reference.
Page 2
4. CREATION OF SECURITY INTEREST
(1) GRANT OF SECURITY INTEREST. Borrower grants Bank a continuing
security interest in all presently existing and later acquired Collateral to
secure all Obligations and performance of each of Borrower's duties under the
Loan Documents. Except for Permitted Liens, any security interest will be a
first priority security interest in the Collateral. Bank may place a "hold"
on any deposit account pledged as Collateral. If the Agreement is terminated,
Bank's lien and security interest in the Collateral will continue until
Borrower fully satisfies its Obligations.
Borrower does not grant Bank a security interest in, or lien on
any intellectual property, including with limitation patents, copyright
rights, copyright applications, copyright registrations and like protections
in each work of authorship and derivative work, whether published or
unpublished, now owned or later acquired; any patents, trademarks, service
marks and applications therefor; any trade secret rights, including any
rights to unpatented inventions, know-how, operating manuals, license rights
and agreements and confidential information, now owned or hereafter acquired;
or any claims for damages by way of any past, present and future infringement
of any of the foregoing.
Notwithstanding the foregoing, the security interest granted
herein shall not extend to and the term "Collateral" shall not include any
property, rights or licenses to the extent the granting of a security
interest therein (i) would be contrary to applicable law or (ii) is
prohibited by or would constitute a default under any agreement or document
(but excluding any agreement or document concerning the borrowing of money or
granting of a security interest) governing such property, rights or licenses
(but only to the extent such prohibition is enforceable under applicable law).
5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
(1) DUE ORGANIZATION AND AUTHORIZATION. Borrower and each Subsidiary
is duly existing and in good standing in its state of formation and qualified
and licensed to do business in, and in good standing in, any state in which
the conduct of its business or its ownership of property requires that it be
qualified, except where the failure to so qualify could not reasonably be
expected to cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have
been duly authorized, and do not conflict with Borrower's formations
documents, nor constitute an event of default under any material agreement by
which Borrower is bound. Borrower is not in default under any agreement to
which or by which it is bound in which the default could cause a Material
Adverse Change.
(2) COLLATERAL. Borrower has good title to the Collateral, free of
Liens except Permitted Liens. The Eligible Accounts are bona fide, existing
obligations, and the service or property has been performed or delivered to
the account debtor or its agent for immediate shipment to and unconditional
acceptance by the account debtor. Borrower has no notice of any actual or
imminent Insolvency Proceeding of any account debtor whose accounts are an
Eligible Account in any Borrowing Base Certificate. All Inventory is in all
material respects of good and marketable quality, free from material defects.
(3) LITIGATION. Except as shown in the Schedule attached hereto as
Schedule 1, there are no actions or proceedings pending or, to Borrower's
knowledge, threatened by or against Borrower or any Subsidiary in which an
adverse decision could cause a Material Adverse Change.
(4) NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All
consolidated financial statements for Borrower and any Subsidiary delivered
to Bank fairly present in all material respects Borrower's consolidated
financial condition and Borrower's consolidated results of operations. There
has not been any material deterioration in Borrower's consolidated financial
condition since the date of the most recent financial statements submitted to
Bank.
(5) SOLVENCY. The fair salable value of Borrower's assets (including
goodwill minus disposition costs) exceeds the fair value of its liabilities;
the Borrower is not left with unreasonably small capital after the transactions
in this Agreement; and Borrower is able to pay its debts (including trade
debts) as they mature.
Page 3
(6) REGULATORY COMPLIANCE. Borrower is not an "investment company"
or a company "controlled" by an "investment company" under the Investment
Company Act. Borrower is not engaged as one of its important activities in
extending credit for margin stock (under Regulations G, T and U of the
Federal Reserve Board of Governors). Borrower has complied with the Federal
Fair Labor Standards Act. Borrower has not violated any laws, ordinances or
rules, the violation of which could cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower
or any Subsidiary or, to the best of Borrower's knowledge, by previous
Persons, in disposing, producing, storing, treating, or transporting any
hazardous substance other than legally. To the best of Borrower's knowledge,
Borrower and each Subsidiary has timely filed all required tax returns and
paid, or made adequate provision to pay, all taxes. Borrower and each
Subsidiary have obtained all consents, approvals and authorizations of, made
all declarations or filings with, and given all notices to, all government
authorities that are necessary to continue its business as currently
conducted, except where the failure to do so could not reasonably be expected
to cause a Material Adverse Change.
(7) SUBSIDIARIES. Borrower does not own any stock, partnership
interest or other equity securities except for Permitted Investments.
(8) FULL DISCLOSURE. No representation, warranty or other statement
of Borrower in any certificate or written statement given to Bank, taken
together with all such certificates and written statements given to Bank,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained in the certificates or
statements not misleading.
6. AFFIRMATIVE COVENANTS
Borrower will do all of the following:
(1) GOVERNMENT COMPLIANCE. Borrower will maintain its and all
Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could reasonably be expected to have a material adverse
effect on Borrower's business or operations. Borrower will comply, and have
each Subsidiary comply, with all laws, ordinances and regulations to which it
is subject, noncompliance with which could (i) reasonably be expected to have
a material adverse effect on Borrower's business or operations, or (ii) cause
a Material Adverse Change.
(2) FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(1) Borrower will deliver to Bank: (i) as soon as
available, but no later than 30 days after the last day of each month, a
company prepared consolidated balance sheet and income statement covering
Borrowers' consolidated operations during the period, together with the
balance sheet and income statements of Borrower's international Subsidiaries,
eliminations, and a consolidation of all Borrower's and Subsidiaries, in a
form acceptable to Bank and certified by a Responsible Officer; (ii) within
5 days of filing, copies of all statements, reports and notices made available
to Borrower's security holders or to any holders of Subordinated Debt and all
reports on Form 10-K and 10-Q with the Securities and Exchange Commission;
(iii) a prompt report of any legal actions pending or threatened against
Borrower or any Subsidiary that could result in damages or costs to Borrower
or any Subsidiary of $100,000 or more; and (iv) budgets, sales projections,
operating plans or other financial information Bank reasonably requests.
(2) Borrower will deliver to Bank Within 7 days of each
Friday, a Borrowing Base Certificate signed by a Responsible Officer in the
form of Exhibit C, with aged listings of accounts receivable and accounts
payable.
(3) Within 30 days after the last day of each month,
Borrower will deliver to Bank with the monthly financial statements a
Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(4) Bank has the right to audit Borrower's Accounts at
Borrower's expense, but the audits will be conducted no more often than once
every 6 months unless an Event of Default has occurred and is continuing.
Page 4
(3) TAXES. Borrower will make, and cause each Subsidiary to make,
timely payment of all material federal, state, and local taxes or assessments
and will deliver to Bank, on demand, appropriate certificates attesting to
the payment.
(4) INSURANCE. Borrower will keep its business and the Collateral
insured for risks and in amounts, as Bank requests. Insurance policies will
be in a form, with companies, and in amounts that are satisfactory to Bank
and comparable to other similar businesses in the same geographic area. All
property policies will have a lender's loss payable endorsement showing Bank
as an additional loss payee and all liability policies will show the Bank as
an additional insured and provide that the insurer must give Bank at least
20 days notice before canceling its policy. At Bank's request, Borrower will
deliver certified copies of policies and evidence of all premium payments.
Proceeds payable under any policy in excess of $25,000 (or in any amount
after occurrence of an Event of Default) will, at Bank's option, be payable
to Bank on account of the Obligations.
(5) PRIMARY ACCOUNTS. Borrower will maintain its primary depository
and operating accounts with Bank.
(6) FINANCIAL COVENANTS.
Borrower will maintain as of the last day of each month:
(1) QUICK RATIO. A ratio of Quick Assets to Current
Liabilities minus Deferred Revenue of at least 0.65 to 1.0 for the month-ends
from June 30, 1999 through and including November 30, 1999; and 0.75 for each
month-end thereafter.
(2) DEBT/NET WORTH RATIO. A ratio of Total Liabilities
less Subordinated Debt less Deferred Revenue to Tangible Net Worth of not
more than 3.00 to 1.00 commencing June 30, 1999.
(3) TANGIBLE NET WORTH. A Tangible Net Worth of at least
$2,000,000 as of June 30, 1999; $1,900,000 as of July 31, 1999; and
$1,800,000 for each month-end thereafter.
(4) MAXIMUM NET LOSSES. Incur net losses of no more than
$250,000 for the quarter ending June 30, 1999; $150,000 for the quarter
ending September 30, 1999; and $0.00 for the quarter ending December 31, 1999
and thereafter.
(7) FURTHER ASSURANCES. Borrower will execute any further instruments
and take further action as Bank requests to perfect or continue Bank's security
interest in the Collateral or to effect the purposes of this Agreement.
70 NEGATIVE COVENANTS
Borrower will not do any of the following without the prior written
consent of the Bank:
(1) DISPOSITIONS. Convey, sell, lease, transfer or otherwise dispose
of (collectively "Transfer"), or permit any of its Subsidiaries to Transfer,
all or any part of its business or property, other than a Transfer: (i) of
Inventory in the ordinary course of business: (ii) of non-exclusive licenses
and similar arrangements for the use of the property of Borrower or its
Subsidiaries in the ordinary course of business; (iii) otherwise permitted
under this Section 7; (iv) in an aggregate amount not exceeding $100,000 in
aggregate amount in any fiscal year; or (v) of worn-out or obsolete Equipment.
(2) CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS.
Engage in or permit any of its Subsidiaries to engage in any business other
than the businesses currently engaged in by Borrower or have a material
change in its ownership OF GREATER THAN 50% or management. Borrower will
not, without at least 30 days prior written notice to Bank, relocate its
principal executive office or add any new offices or business locations.
(3) MERGERS OR ACQUISITIONS. (i) Merge or consolidate, or permit any
of its Subsidiaries to merge or consolidate, with any other Person other than
Borrower or a wholly owned subsidiary thereof, or (ii) acquire, or permit any
of its Subsidiaries to acquire, all or substantially all of the capital stock
or property of another Person, provided
Page 5
Borrower or its Subsidiaries may make acquisitions to the extent (a) Borrower
is not in default under this Agreement, (b) such acquisition does not cause a
breach or violation of any financial covenants under this Agreement, and
(c) Borrower has given Bank at least thirty (30) days' prior written notice.
(4) INDEBTEDNESS. Create, incur, assume, or be liable for any
Indebtedness, or permit any Subsidiary to do so, other than Permitted
Indebtedness.
(5) ENCUMBRANCE. Create, incur, or allow any Lien on any of its
property, or assign or convey any right to receive income, including the sale
of any Accounts, or permit any of its Subsidiaries to do so, except for
Permitted Liens, or permit Bank's first priority security interest in the
Collateral to be materially impaired.
(6) INVESTMENTS; DISTRIBUTIONS. (i) Make any Investment in any
Person, other than Permitted Investments, or permit any of its Subsidiaries
to do so; or (ii) pay any dividends or make any distribution or payment or
redeem, retire or purchase any capital stock, except for (a) repurchases of
stock from former employees or consultants of Borrower in accordance with the
terms of repurchase agreements between Borrower and such employee or
consultant, (b) distributions payable solely in Borrower's capital stock, and
(iii) Borrower may convert any of its convertible securities into other
securities pursuant to the terms of such convertible securities or otherwise
in exchange therefor.
(7) TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter or
permit any material transaction with any Affiliate, except transactions that
are in the ordinary course of Borrower's business, on terms less favorable to
Borrower than would be obtained in an arm's length transaction with a
non-affiliated Person.
(8) SUBORDINATED DEBT. Make or permit any payment on any Subordinated
Debt, except under the terms of the Subordinated Debt, or amend any provision
in any document relating to the Subordinated Debt, without Bank's prior written
consent.
(9) COMPLIANCE. Become an "investment company" or a company
controlled by an "investment company," under the Investment Company Act of
1940 or undertake as one of its important activities extending credit to
purchase or carry margin stock, or use the proceeds of any Advance for that
purpose; fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur;
fail to comply with the Federal Fair Labor Standards Act or violate any other
law or regulation, if the violation could reasonably be expected to (i) have
a material adverse effect on Borrower's business or operations, or (ii) cause
a Material Adverse Change, or permit any of its Subsidiaries to do so.
80 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
(1) PAYMENT DEFAULT. Borrower fails to pay any (i) principal amount
of any Advances when due and payable, (ii) interest due on any Advances
within five (5) days of the due date thereof, or (iii) any portion of any
other Obligations not constituting such principal or interest, including
without limitation Bank Expenses, within thirty (30) days of receipt by
Borrower of an invoice for such other Obligations;
(2) COVENANT DEFAULT. Borrower does not perform any obligation in
Section 6 or violates any covenant in Article 7 or does not perform or
observe any other material term, condition or covenant in this Agreement, any
Loan Documents, or in any agreement between Borrower and Bank and as to any
default under a term, condition or covenant that can be cured, has not cured
the default within 30 days after it occurs, or if the default cannot be cured
within 30 days or cannot be cured after Borrower's attempts in the 30 day
period, and the default may be cured within a reasonable time, then Borrower
has an additional time, (of not more than 30 days) to attempt to cure the
default. During the additional period the failure to cure the default is not
an Event of Default (but no Credit Extensions will be made during the cure
period);
(3) MATERIAL ADVERSE CHANGE. (i) There occurs a material impairment
in the perfection or priority of Bank's security interest in the Collateral
or in the value of such Collateral which is not covered by adequate
insurance; or (ii) Bank determines, based upon information available to it
and in its reasonable judgment, that Borrower will fail to comply with one or
more of the financial covenants in Section 6 during the next succeeding
financial reporting period;
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(4) ATTACHMENT. (i) Any material portion of Borrower's assets is
attached, seized, levied on, or comes into possession of a trustee or
receiver and the attachment, seizure or levy is not removed in 30 days;
(ii) Borrower is enjoined, restrained, or prevented by court order from
conducting a material part of its business; (iii) a judgment or other claim
becomes a Lien on a material portion of Borrower's assets; or (iv) a notice
of lien, levy, or assessment is filed against any of Borrower's assets by any
government agency and not paid within 30 days after Borrower receives notice.
These are not Events of Default if stayed or if a bond is posted pending
contest by Borrower (but no Credit Extensions will be made during the cure
period);
(5) INSOLVENCY. (i) Borrower becomes insolvent; (ii) Borrower begins
an Insolvency Proceeding; or (iii) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within 60 days (but no Credit Extensions
will be made before any Insolvency Proceeding is dismissed);
(6) OTHER AGREEMENTS. There is a default in any agreement between
Borrower and a third party that gives the third party the right to accelerate
any Indebtedness exceeding $100,000 or that could cause a Material Adverse
Change;
(7) JUDGMENTS. A money judgment(s) in the aggregate of at least
$50,000 is rendered against Borrower and is unsatisfied and unstayed for
30 days (but no Credit Extensions will be made before the judgment is stayed or
satisfied);
(8) MISREPRESENTATIONS. If Borrower or any Person acting for Borrower
makes any material misrepresentation or material misstatement now or later in
any warranty or representation in this Agreement or in any communication
delivered to Bank or to induce Bank to enter this Agreement or any Loan
Document.
90 BANK'S RIGHTS AND REMEDIES
(1) RIGHTS AND REMEDIES. When an Event of Default occurs and is
continuing Bank may, without notice or demand, do any or all of the following:
(1) Declare all Obligations immediately due and payable
(but if an Event of Default described in Section 8.5 occurs all Obligations
are immediately due and payable without any action by Bank);
(2) Stop advancing money or extending credit for Borrower's
benefit under this Agreement or under any other agreement between Borrower and
Bank;
(3) Settle or adjust disputes and claims directly with
account debtors for amounts, on terms and in any order that Bank considers
advisable;
(4) Make any payments and do any acts it considers
necessary or reasonable to protect its security interest in the Collateral.
Borrower will assemble the Collateral if Bank requests and make it available
as Bank designates. Bank may enter premises where the Collateral is located,
take and maintain possession of any part of the Collateral, and pay,
purchase, contest, or compromise any Lien which appears to be prior or
superior to its security interest and pay all expenses incurred. Borrower
grants Bank a license to enter and occupy any of its premises, without
charge, to exercise any of Bank's rights or remedies;
(5) Apply to the Obligations any (i) balances and
deposits of Borrower it holds, or (ii) any amount held by Bank owing to or
for the credit or the account of Borrower;
(6) Ship, reclaim, recover, store, finish, maintain,
repair, prepare for sale, advertise for sale, and sell the Collateral.
(7) Dispose of the Collateral according to the Code.
(2) POWER OF ATTORNEY. When an Event of Default occurs and continues,
Borrower irrevocably appoints Bank as its lawful attorney to: (i) endorse
Borrower's name on any checks or other forms of payment or security;
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(ii) sign Borrower's name on any invoice or ▇▇▇▇ of lading for any Account or
drafts against account debtors, (iii) make, settle, and adjust all claims
under Borrower's insurance policies; (iv) settle and adjust disputes and
claims about the Accounts directly with account debtors, for amounts and on
terms Bank determines reasonable; and (v) transfer the Collateral into the
name of Bank or a third party as the Code permits. Bank may exercise the
power of attorney to sign Borrower's name on any documents necessary to
perfect or continue the perfection of any security interest regardless of
whether an Event of Default has occurred. Bank's appointment as Borrower's
attorney in fact, and all of Bank's rights and powers, coupled with an
interest, are irrevocable until all Obligations have been fully repaid and
performed and Bank's obligation to provide Credit Extensions terminates.
(3) ACCOUNTS COLLECTION. When an Event of Default occurs and
continues, Bank may notify any Person owing Borrower money of Bank's security
interest in the funds and verify the amount of the Account. Borrower must
collect all payments in trust for Bank and, if requested by Bank, immediately
deliver the payments to Bank in the form received from the account debtor,
with proper endorsements for deposit.
(4) BANK EXPENSES. If Borrower fails to pay any amount or furnish
any required proof of payment to third persons Bank may make all or part of
the payment or obtain insurance policies required in Section 6.5, and take
any action under the policies Bank reasonably deems prudent. Any amounts
paid by Bank are Bank Expenses and due and payable within 10 days of written
notice thereof to Borrower, bearing interest at the then applicable rate and
secured by the Collateral. No payments by Bank are deemed an agreement to
make similar payments in the future or Bank's waiver of any Event of Default.
(5) BANK'S LIABILITY FOR COLLATERAL. If Bank complies with reasonable
banking practices it is not liable or responsible for: (a) the safekeeping of
the Collateral; (b) any loss or damage to the Collateral; (c) any diminution
in the value of the Collateral; or (d) any act or default of any carrier,
warehouseman, bailee, or other person. Borrower bears all risk of loss,
damage or destruction of the Collateral.
(6) REMEDIES CUMULATIVE. Bank's rights and remedies under this
Agreement and the Loan Documents are cumulative. Bank has all rights and
remedies provided under the Code, by law, or in equity. Bank's exercise of
one right or remedy is not an election, and Bank's waiver of any Event of
Default is not a continuing waiver. Bank's delay is not a waiver, election,
or acquiescence. No waiver is effective unless signed by Bank and then is
only effective for the specific instance and purpose for which it was given.
(7) DEMAND WAIVER. Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default, nonpayment
at maturity, release, compromise, settlement, extension, or renewal of
accounts, documents, instruments, chattel paper, and guaranties held by Bank
on which Borrower is liable.
100 NOTICES
All notices or demands by any party to this Agreement or any other
related agreement must be in writing and be personally delivered or sent by
an overnight delivery service, by certified mail, postage prepaid, return
receipt requested, or by telefacsimile at the addresses below:
Borrower: Sento Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Bank: Silicon Valley Bank
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
A party may change its notice address by giving the other party written
notice.
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110 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
California law governs the Loan Documents without regard to principles
of conflicts of law. Borrower and Bank each submit to the exclusive
jurisdiction of the State and Federal courts in Santa ▇▇▇▇▇ County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN
DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH
OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH
PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER
WITH ITS COUNSEL.
120 GENERAL PROVISIONS
(1) SUCCESSORS AND ASSIGNS. This Agreement binds and is for the
benefit of the successors and permitted assigns of each party. Borrower may
not assign this Agreement or any rights or Obligations under it without
Bank's prior written consent which may be granted or withheld in Bank's
discretion. Bank has the right, without the consent of or notice to
Borrower, to sell, transfer, negotiate, or grant participation in all or any
part of, or any interest in, Bank's obligations, rights and benefits under
this Agreement, the Loan Documents or any related agreement.
(2) INDEMNIFICATION. Borrower will indemnify, defend and hold harmless
Bank and its officers, employees and agents against: (a) all obligations,
demands, claims, and liabilities asserted by any other party in connection
with the transactions contemplated by the Loan Documents; and (b) all losses
or Bank Expenses incurred, or paid by Bank from, following, or consequential
to transactions between Bank and Borrower (including reasonable attorneys'
fees and expenses), except for losses caused by Bank's gross negligence or
willful misconduct.
(3) TIME OF ESSENCE. Time is of the essence for the performance of
all Obligations in this Agreement.
(4) SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability of any
provision.
(5) AMENDMENTS IN WRITING, INTEGRATION. All amendments to this
Agreement must be in writing. This Agreement and the Loan Documents
represent the entire agreement about this subject matter, and supersedes
prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement
and the Loan Documents merge into this Agreement and the Loan Documents.
(6) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, are an original, and all taken together,
are one Agreement.
(7) SURVIVAL. All covenants, representations and warranties made in
this Agreement continue in full force while any Obligations remain
outstanding. The obligations of Borrower in Section 12.2 to indemnify Bank
will survive until all statutes of limitations for actions that may be
brought against Bank have run.
(8) CONFIDENTIALITY. In handling any confidential information, Bank
will exercise the same degree of care that it exercises for its own
proprietary information, but disclosure of information may be made: (i) to
Bank's subsidiaries or affiliates in connection with their business with
Borrower; (ii) to prospective transferees or purchasers of any interest in
the Loans; (iii) as required by law, regulation, subpoena, or other order,
(iv) as required in connection with Bank's examination or audit; and (v) as
Bank considers appropriate exercising remedies under this Agreement.
Confidential information does not include information that either: (a) is in
the public domain or in Bank's possession when disclosed to Bank, or becomes
part of the public domain after disclosure to Bank; or (b) is disclosed to
Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.
Page 9
(9) ATTORNEYS' FEES, COSTS AND EXPENSES.
In any action or proceeding between Borrower and Bank arising
out of the Loan Documents, the prevailing party will be entitled to recover
its reasonable attorneys' fees and other costs and expenses incurred, in
addition to any other relief to which it may be entitled.
(10) BORROWER WAIVERS.
Borrower hereby waives (a) any right to require Bank to:
(i) proceed against any other Borrower or any other person; (ii) proceed
against or exhaust any security; (iii) pursue any other remedy; and (b) Any
setoff, defense or counterclaim against Bank: (i) any defense from the
absence, impairment or loss of any right of reimbursement or subrogation or
any other rights against another Borrower. Until Borrower's obligations to
Bank have been paid, no Borrower shall have a right of subrogation or
reimbursement or subrogation or other rights against another Borrower; (ii) any
right to enforce any remedy that Bank has against any other Borrower; (iii) any
rights to participate in any security held by Bank; (iv) any demands for
performance, notices of nonperformance or of new or additional indebtedness.
Each Borrower is responsible for being and keeping itself informed of each
Borrower's financial condition. Bank has no duty to provide information to
Borrower.
Bank may exercise or not exercise any right or remedy it has against each
Borrower or any security it holds (including the right to foreclose by
judicial or nonjudicial sale) without affecting any other Borrower's
liability.
(11) JOINT AND SEVERAL LIABILITY. Each Borrower is jointly and
severally liable to Bank for all Obligations.
(12) SET-OFF. In addition to all liens upon, and rights of setoff
against, the monies, securities or other property of Borrower given to Bank
by law, Bank shall have a lien upon and a right of setoff against, and
Borrower hereby grants to Bank a security interest in, all monies, securities
and other property of Borrower now and hereafter in the possession of or on
deposit with Bank, whether held in a general or special account or deposit,
or for safekeeping or otherwise; every such lien and right of setoff may be
exercised without notice or demand upon Borrower's default in the payment of
the indebtedness of Borrower to Bank arising under or in connection with the
Note, this Agreement, any security document or instrument given in connection
therewith, or upon the occurrence of any Event of Default under this Agreement
or any other document or instrument executed and delivered in connection
herewith. No lien or right of setoff shall be deemed to have been waived by
any act or conduct on the part of the Bank, by any neglect to exercise such
right of setoff or to enforce such lien, or by any delay in so doing.
130 DEFINITIONS
(1) DEFINITIONS.
In this Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract
rights, and other obligations owed Borrower in connection with its sale or
lease of goods (including licensing software and other technology) or
provision of services, all credit insurance, guaranties, other security and
all merchandise returned or reclaimed by Borrower and Borrower's Books
relating to any of the foregoing.
"ADVANCE" or "ADVANCES" is a loan advance (or advances) under the
Committed Revolving Line.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is
under common control with the Person, and each of that Person's senior
executive officers, directors, partners and, for any Person that is a limited
liability company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs
or expenses (including reasonable attorneys' fees and expenses) for
preparing, negotiating, administering, defending and enforcing the Loan
Documents (including appeals or Insolvency Proceedings).
Page 10
"BORROWER'S BOOKS" are all Borrower's books and records including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs
or any Equipment containing the information.
"BORROWING BASE" is (i) 75% of Eligible Accounts.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the California Uniform Commercial Code.
"COLLATERAL" is the property described on EXHIBIT A.
"COMMITTED REVOLVING LINE" is a Credit Extension of up to $2,000,000.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an
obligation directly or indirectly guaranteed, endorsed, co-made, discounted
or sold with recourse by that Person, or for which that Person is directly or
indirectly liable; (ii) any obligations for undrawn letters of credit for the
account of that Person; and (iii) all obligations from any interest rate,
currency or commodity swap agreement, interest rate cap or collar agreement,
or other agreement or arrangement designated to protect a Person against
fluctuation in interest rates, currency exchange rates or commodity prices;
but "Contingent Obligation" does not include endorsements in the ordinary
course of business. The amount of a Contingent Obligation is the stated or
determined amount of the primary obligation for which the Contingent
Obligation is made or, if not determinable, the maximum reasonably
anticipated liability for it determined by the Person in good faith; but the
amount may not exceed the maximum of the obligations under the guarantee or
other support arrangement.
"CREDIT EXTENSION" is each Advance, Letter of Credit or any other
extension of credit by Bank for Borrower's benefit.
"DEFERRED REVENUE" is all amounts received in advance of performance
under contracts and not yet recognized as revenue.
"ELIGIBLE ACCOUNTS" are Accounts in the ordinary course of Borrower's
business that meet all Borrower's representations and warranties in Section 5.2
including Eligible Foreign Accounts; BUT Bank may change eligibility standards
as necessary in its reasonable judgment, by giving Borrower 30 days prior
written notice. Unless Bank agrees otherwise in writing, Eligible Accounts
will not include:
(1) Accounts that the account debtor has not paid within
90 days of invoice date;
(2) Accounts for an account debtor, 50% or more of whose
Accounts have not been paid within 90 days of invoice date;
(3) Credit balances over 90 days from invoice date;
(4) Accounts for an account debtor, including Affiliates,
whose total obligations to Borrower exceed 25% of all Accounts for the
amounts that exceed that percentage, unless Bank approves in writing;
(5) Accounts for which the account debtor does not have its
principal place of business in the United States ("Foreign Accounts"),
except Eligible Foreign Accounts;
(6) Accounts for which the account debtor is a federal
government entity or any department, agency, or instrumentality,
Page 11
(7) Accounts for which Borrower owes the account debtor,
but only up to the amount owed (sometimes called "contra" accounts,
accounts payable, customer deposits or credit accounts);
(8) Accounts for demonstration or promotional Equipment,
or in which goods are consigned, sales guaranteed, sale or return, sale
on approval, ▇▇▇▇ and hold, or other terms if account debtor's payment
may be conditional;
(9) Accounts for which the account debtor is Borrower's
Affiliate, officer, employee, or agent,
(10) Accounts in which the account debtor disputes liability
or makes any claim and Bank believes there may be a basis for dispute
(but only up to the disputed or claimed amount), or if the Account Debtor
is subject to an Insolvency Proceeding, or becomes insolvent, or goes out
of business;
(11) Accounts for which Bank reasonably determines collection
to be doubtful; and
(12) Accounts consisting of progress payments billed on a
percentage completion basis, except Accounts due to Sento Consulting
Corporation consisting of progress payments billed on a percentage completion
basis but only to the extent they are clearly marked on all Borrowing Base
Certificates and Accounts Receivable agings, and not to exceed 15% of all
Accounts.
"ELIGIBLE FOREIGN ACCOUNTS" are Accounts for which the account debtor
does not have its principal place of business in the United States but are:
(1) covered by credit insurance satisfactory to Bank, less any deductible; or
(2) supported by letter(s) of credit acceptable to Bank; (3) Foreign Accounts
not to exceed 20% of all Accounts, including Accounts from foreign subsidiaries
of Gateway Corporation which alone shall not to exceed 15% of all Accounts, or
(4) that Bank approves in writing.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ERISA" is the Employment Retirement Income Security Act of 1974, and
its regulations.
"GAAP" is generally accepted accounting principles.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations
for surety bonds and letters of credit, (b) obligations evidenced by notes,
bonds, debentures or similar instruments, (c) capital lease obligations and
(d) Contingent Obligations.
"INSOLVENCY PROCEEDING" is any proceeding by or against any Person
under the United States Bankruptcy Code, or any other bankruptcy or insolvency
law, including assignments for the benefit of creditors, compositions,
extensions generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INVESTMENT" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person other than a Subsidiary,
or a Person who will become a Subsidiary upon completion of the investment,
or any loan, advance or capital contribution to any Person other than a
Subsidiary, or a Person who will become a Subsidiary upon completion of the
investment.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes
or guaranties executed by Borrower or Guarantor, and any other present or
future agreement between Borrower and/or for the benefit of Bank in connection
with this Agreement, all as amended, extended or restated.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"MATURITY DATE" is the Revolving Maturity Date.
Page 12
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letters of credit and
including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Bank.
"PERMITTED INDEBTEDNESS" is:
(1) Borrower's indebtedness to Bank under this Agreement
or the Loan Documents;
(2) Indebtedness existing on the Closing Date and shown
on attached Schedule 2;
(3) Subordinated Debt;
(4) Indebtedness to trade creditors and with respect to
surety bonds and similar arrangements incurred in the ordinary course of
business;
(5) Indebtedness secured by Permitted Liens;
(6) Other Indebtedness for purchase money obligations or
leases not otherwise permitted by Section 7.4 and not to exceed $100,000.00
in the aggregate outstanding at any one time; and
(7) Extensions, refinancing, modifications, amendments
and restatements of any items of Permitted Indebtedness (a) through (f), above,
provided that the principal amount therefore is not increased or the terms
thereof are not modified to impose more burdensome terms upon Borrower or its
Subsidiary, as the case may be.
"PERMITTED INVESTMENTS" are:
(1) Investments shown on Schedule 3, attached hereto and
existing on the Closing Date;
(2) (1) marketable direct obligations issued or
unconditionally guaranteed by the United States or its agency or any State
maturing within 1 year from its acquisition, (ii) commercial paper maturing
no more than 1 year after its creation and having the highest rating from
either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc., and
(iii) Bank's certificates of deposit issued maturing no more than 1 year
after issue; and
(3) Investments in Borrower's foreign Subsidiaries so long
as Borrower is not in default hereunder and to the extent such investment
will not cause Borrower to violate any covenant or other provision of this
Agreement.
(4) Investments (not including debt obligations) received
in connection with the bankruptcy or reorganization of customers or suppliers
and in settlement of delinquent obligations of, and other disputes with,
customers or suppliers arising in the ordinary course of business;
(5) Investments pursuant to or arising under currency
agreement or interest rate agreements entered into in the ordinary course of
business;
(6) Investments consisting of prepaid royalties and other
credit extensions to customers and suppliers who are not Affiliates, in the
ordinary course of business;
(7) Investments constituting acquisitions permitted under
Section 7.3;
(8) Deposit accounts of Borrower in which Bank has a Lien
prior to any other Lien;
(9) Deposit accounts of any Subsidiaries maintained in
the ordinary course of business;
(10) Investments accepted in connection with transfer
permitted by Section 7.1;
Page 13
(11) Other Investments aggregating not in excess of
$100,000.00.
"PERMITTED LIENS" are:
(1) Liens existing on the Closing Date and shown on
Schedule 4 attached hereto, or arising under this Agreement or other Loan
Documents;
(2) Liens for taxes, fees, assessments or other
government charges or levies, either not delinquent or being contested in
good faith and for which Borrower maintains adequate reserves on its Books,
IF they have no priority over any of Bank's security interests;
(3) Purchase money Liens (i) on Equipment acquired or
held by Borrower or its Subsidiaries incurred for financing the acquisition
of the Equipment, or (ii) existing on Equipment when acquired, IF the Lien is
confined to the property and improvements and the proceeds of the Equipment;
(4) Leases or subleases and licenses or sublicenses
granted in the ordinary course of Borrower's business and any interest or
title of a lessor, licensor or under any lease or license;
(5) Leases or subleases and licenses or sublicenses
granted in the ordinary course of Borrower's business not interfering in any
material respect with the business of Borrower and its Subsidiaries taken as
a whole, and any interest or title of a lessor, licensor or under any lease
or license;
(6) Liens arising from judgments, decrees or attachments
in circumstances not constituting an Event of Default under Section 8.7;
(7) Easements, reservations, rights of way, restrictions,
minor defects or irregularities in title and similar charges or encumbrances
affecting real property not constituting a Material Adverse Effect;
(8) Liens that are not prior to the Lien of Bank which
constitute rights of setoff of a customary nature or banker's lien with
respect to amounts on deposit, whether arising by operation of law or by
contract, in connection with arrangements entered into with banks in the
ordinary course of business;
(9) Earned-out and royalty obligations existing on the
date hereof or entered into in connection with an acquisition permitted by
Section 7.3;
(10) Liens on assets (including the proceeds thereof and
accessions thereto) that existed at the time such assets were acquired by
Borrower or any Subsidiary (including Liens on assets of any corporation that
existed at the time it became or becomes a Subsidiary); provided such Liens
are not granted in contemplation of or in connection with the acquisition of
such asset by Borrower or a Subsidiary;
(11) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payments of customs duties in connection
with the importation of goods;
(12) Liens or deposits to secure indemnity, performance or
other similar bonds in the ordinary course of business; and
(13) Liens arising by operation of law such as mechanics',
materialman's, carriers', warehousemen's liens incurred in the ordinary
course of business;
(14) Liens arising in connection with any Permitted
Indebtedness; and
(15) Liens incurred in the extension, renewal or refinancing
of the indebtedness secured by Liens described in (a) through (d) and (n),
but any extension, renewal or replacement Lien must be limited to the
property encumbered by the existing Lien and the principal amount of the
indebtedness may not increase.
Page 14
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"PRIME RATE" is Bank's most recently announced "prime rate," even if
it is not Bank's lowest rate.
"QUICK ASSETS" is, on any date, the Borrower's consolidated,
unrestricted cash, cash equivalents, net billed accounts receivable and
investments with maturities of less than 12 months determined according to
GAAP.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"REVOLVING MATURITY DATE" is February 12, 2000.
"SCHEDULE" is any attached schedule of exceptions.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank).
"SUBSIDIARY" is any Person or any other business entity of which more
than 50% of the voting stock or other equity interests is owned or controlled,
directly or indirectly, by the Borrower or one or more Affiliates or
Subsidiaries of the Borrower.
"TANGIBLE NET WORTH" is, on any date, (a) the consolidated total assets
of Borrower and its Subsidiaries plus the total amount of the CIBC debenture,
MINUS, (b) any amounts attributable to (i) goodwill, (ii) intangible items
such as unamortized debt discount and expense, Patents, trade and service
marks and names, Copyrights and research and development expenses except
prepaid expenses, and including as intangible items inter-company receivables
from Foreign Subsidiaries and any investments by Borrower in foreign
Subsidiaries, (iii) reserves not already deducted from assets, AND (iv) Total
Liabilities plus (c) Subordinated Debt.
"TOTAL LIABILITIES" is on any day, obligations that are classified
under GAAP as liabilities on Borrower's consolidated balance sheet, including
all Indebtedness, and current portion Subordinated Debt allowed to be paid,
but excluding all other Subordinated Debt.
Page 15
BORROWER:
SENTO CORPORATION SENTO TRAINING CORPORATION
By: By:
----------------------------- --------------------------------
Title: Title:
-------------------------- -----------------------------
SENTO CONSULTING CORPORATION SENTO TECHNICAL SERVICES CORPORATION
By: By:
----------------------------- --------------------------------
Title: Title:
-------------------------- -----------------------------
BANK:
SILICON VALLEY BANK
By:
-----------------------------
Title:
--------------------------
Page 16
EXHIBIT A
THE COLLATERAL CONSISTS OF ALL RIGHT, TITLE AND INTEREST OF BORROWER
IN AND TO THE FOLLOWING:
All goods and Equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor
vehicles and trailers), and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds,
including insurance proceeds, resulting from the sale or disposition of any
of the foregoing and any documents of title representing any of the above,
and Borrower's Books relating to any of the foregoing;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, claims, literature, reports, catalogs, income
tax refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and
any and all credit insurance, guaranties, and other security therefor, as
well as all merchandise returned to or reclaimed by Borrower and Borrower's
Books relating to any of the foregoing;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, letters of credit, certificates of
deposit, instruments and chattel paper now owned or hereafter acquired and
Borrower's Books relating to the foregoing; and
Any and all claims, rights and interests in any of the above and all
substitutions for, additions and accessions to and proceeds thereof.
BORROWER DOES NOT GRANT BANK A SECURITY INTEREST IN, OR LIEN ON ANY
INTELLECTUAL PROPERTY, INCLUDING WITH LIMITATION PATENTS, COPYRIGHT RIGHTS,
COPYRIGHT APPLICATIONS, COPYRIGHT REGISTRATIONS AND LIKE PROTECTIONS IN EACH
WORK OF AUTHORSHIP AND DERIVATIVE WORK, WHETHER PUBLISHED OR UNPUBLISHED, NOW
OWNED OR LATER ACQUIRED; ANY PATENTS, TRADEMARKS, SERVICE MARKS AND
APPLICATIONS THEREFOR; ANY TRADE SECRET RIGHTS, INCLUDING ANY RIGHTS TO
UNPATENTED INVENTIONS, KNOW-HOW, OPERATING MANUALS, LICENSE RIGHTS AND
AGREEMENTS AND CONFIDENTIAL INFORMATION, NOW OWNED OR HEREAFTER ACQUIRED; OR
ANY CLAIMS FOR DAMAGES BY WAY OF ANY PAST, PRESENT AND FUTURE INFRINGEMENT OF
ANY OF THE FOREGOING.
Page 17
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM:
-------------------
The undersigned authorized officer of Sento Corporation certifies that
under the terms and conditions of the Loan and Security Agreement between
Borrower and Bank (the "Agreement"), (i) Borrower is in complete compliance
for the period ending _______________ with all required covenants except as
noted below and (ii) all representations and warranties in the Agreement are
true and correct in all material respects on this date. Attached are the
required documents supporting the certification. The Officer certifies that
these are prepared in accordance with Generally Accepted Accounting Principles
(GAAP) consistently applied from one period to the next except as explained
in an accompanying letter or footnotes. The Officer acknowledges that no
borrowings may be requested at any time or date of determination that
Borrower is not in compliance with any of the terms of the Agreement, and
that compliance is determined not just at the date this certificate is
delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
Monthly financial statements [MONTHLY] within 30 days Yes No
10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No
A/R & A/P Agings Weekly within 7 days of each Friday Yes No
A/R Audit Initial and Semi-Annual Yes No
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
Maintain on a Monthly Basis (unless noted):
Minimum Quick Ratio ________ ____:1.0 Yes No
Minimum Tangible Net Worth ________ $_______ Yes No
Maximum Debt/Tangible Net Worth 3.00:1.0 ____:1.0 Yes No
------------------------------
COMMENTS REGARDING EXCEPTIONS: See Attached. BANK USE ONLY
------------------------------
Received by:
-----------------
AUTHORIZED SIGNER
Sincerely,
Date:
------------------------
------------------------- Verified:
SIGNATURE --------------------
AUTHORIZED SIGNER
------------------------- Date:
TITLE ------------------------
Compliance Status: Yes No
------------------------- ------------------------------
DATE
18 - AMENDMENT TO WARRANT TO PURCHASE STOCK
AMENDMENT TO WARRANT TO PURCHASE STOCK
THIS AMENDMENT TO WARRANT TO PURCHASE STOCK, made and entered into
as of the 23 day of June, 1999, by and between SILICON VALLEY BANK (hereinafter
referred to as "Bank"), and SENTO CORPORATION, ("Company").
RECITALS:
The parties entered into a warrant to purchase stock dated as of
March 2, 1999, ("Warrant"), and the parties now desire to amend the Warrant
as hereinafter provided. All capitalized terms used herein shall have the
meanings assigned to them in the Warrant.
19 - AMENDMENT TO WARRANT TO PURCHASE STOCK
NOW, THEREFORE, the parties mutually agree as follows:
1. The Warrant is hereby amended to provide:
(a) The Initial Exercise Price, also referred to as the Warrant
Price, is hereby changed to $1.60.
(b) The number of shares of the common stock of the Company
subject to the Warrant is hereby increased to 60,000, and all references to
the Shares in the Warrant shall be deemed to be a reference to 60,000 shares
of the Company's common stock.
2. Except as herein amended, each and all of the terms and provisions
of the Warrant shall be and remain in full force and effect during the term
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
to the Agreement as of the date written above.
[Intentionally Blank]
20 - AMENDMENT TO WARRANT TO PURCHASE STOCK
Borrower hereby acknowledges receipt of a copy of this Amendment.
COMPANY:
SENTO CORPORATION
By: By:
------------------------------- --------------------------------
Title: Title:
---------------------------- -----------------------------
Chair of Board, President or CFO, Secretary or
Vice President Assistant Secretary
SILICON VALLEY BANK
By:
-------------------------------
Title:
----------------------------
21 - AMENDMENT TO WARRANT TO PURCHASE STOCK
