EXHIBIT 10.9
LOAN FROM SILICON VALLEY BANK TO
THE COMPANY
DATED AUGUST 22, 2000
SILICON VALLEY BANK
LOAN AND SECURITY AGREEMENT
BORROWER: ADEXA, INC.
ADDRESS: 5933 W. CENTURY BLVD.
SUITE 1220
LOS ANGELES, CA 90045
DATE: AUGUST 22, 2000
THIS LOAN AND SECURITY AGREEMENT is entered into on the above date between
SILICON VALLEY BANK, COMMERCIAL FINANCE DIVISION ("Silicon"), whose address is
3003 Tasman Drive, Santa Clara, California 95054 and the borrower(s) named above
(jointly and severally, the "Borrower"), whose chief executive office is located
at the above address ("Borrower's Address"). The Schedule to this Agreement (the
"Schedule") shall for all purposes be deemed to be a part of this Agreement, and
the same is an integral part of this Agreement. (Definitions of certain terms
used in this Agreement are set forth in Section 8 below.)
1. LOANS.
1.1 LOANS. Silicon will make loans to Borrower (the "Loans"), in amounts
determined by Silicon in its sole discretion, up to the amounts (the "Credit
Limit") shown on the Schedule, provided no Default or Event of Default has
occurred and is continuing, and subject to deduction of any Reserves for accrued
interest and such other Reserves as Silicon deems proper from time to time.
1.2 INTEREST. All Loans and all other monetary Obligations shall bear
interest at the rate shown on the Schedule, except where expressly set forth
to the contrary in this Agreement. Interest shall be payable monthly, on the
last day of the month. Interest may, in Silicon's discretion, be charged to
Borrower's loan account, and the same shall thereafter bear interest at the
same rate as the other Loans. Silicon may, in its discretion, charge interest
to Borrower's Deposit Accounts maintained with Silicon. Regardless of the
amount of Obligations that may be outstanding from time to time, Borrower
shall pay Silicon minimum monthly interest during the term of this Agreement
in the amount set forth on the Schedule (the "Minimum Monthly Interest").
1.3 OVERADVANCES. If at any time or for any reason the total of all
outstanding Loans and all other Obligations exceeds the Credit Limit (an
"Overadvance"), Borrower shall immediately pay the amount of the excess to
Silicon, without notice or demand. Without limiting Borrower's obligation to
repay to Silicon on demand the amount of any Overadvance, Borrower agrees to
pay Silicon interest on the outstanding amount of any Overadvance, on demand,
at a rate equal to the interest rate which would otherwise be applicable to
the Overadvance, plus an additional 2% per annum.
1.4 FEES. Borrower shall pay Silicon the fee(s) shown on the Schedule,
which are in addition to all interest and other sums payable to Silicon and
are not refundable.
1.5 LETTERS OF CREDIT. At the request of Borrower, Silicon may, in its
sole discretion, issue or arrange for the issuance of letters of credit for
the account of Borrower, in each case in form and substance satisfactory to
Silicon in its sole discretion (collectively, "Letters of Credit"). The
aggregate face amount of all outstanding Letters of Credit from time to time
shall not exceed the amount shown on the Schedule (the "Letter of Credit
Sublimit"), and shall be reserved against Loans which would otherwise be
available hereunder. Borrower shall pay all bank charges (including charges
of Silicon) for the issuance of Letters of Credit, together with such
additional fee as Silicon's letter of credit department shall charge in
connection with the issuance of the Letters of Credit. Any payment by Silicon
under or in connection with a Letter of Credit shall constitute a Loan
hereunder on the date such payment is made. Each Letter of Credit shall have
an expiry date no later than thirty days prior to the Maturity Date. Borrower
hereby agrees to indemnify, save, and hold Silicon harmless from any loss,
cost, expense, or liability, including payments made by Silicon, expenses,
and reasonable attorneys' fees incurred by Silicon arising out of or in
connection with any Letters of Credit. Borrower agrees to be bound by the
regulations and interpretations of the issuer of any Letters of Credit
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guarantied by Silicon and opened for Borrower's account or by Silicon's
interpretations of any Letter of Credit issued by Silicon for Borrower's
account, and Borrower understands and agrees that Silicon shall not be liable
for any error, negligence, or mistake, whether of omission or commission, in
following Borrower's instructions or those contained in the Letters of Credit
or any modifications, amendments, or supplements thereto. Borrower
understands that Letters of Credit may require Silicon to indemnify the
issuing bank for certain costs or liabilities arising out of claims by
Borrower against such issuing bank. Borrower hereby agrees to indemnify and
hold Silicon harmless with respect to any loss, cost, expense, or liability
incurred by Silicon under any Letter of Credit as a result of Silicon's
indemnification of any such issuing bank. The provisions of this Loan
Agreement, as it pertains to Letters of Credit, and any other present or
future documents or agreements between Borrower and Silicon relating to
Letters of Credit are cumulative.*
*1.6 CASH MANAGEMENT SERVICES AND RESERVES. Borrower may use up to $20,000
of Loans available hereunder for Silicon's Cash Management Services (as
defined below), including, merchant services, business credit card, ACH and
other services identified in the cash management services agreement related
to such service (the "Cash Management Services"). Silicon may, in its sole
discretion, reserve against Loans which would otherwise be available
hereunder such sums as Silicon shall determine in connection with the Cash
Management Services, and Silicon may charge to Borrower's Loan account, any
amounts that may become due or owing to Silicon in connection with the Cash
Management Services. Borrower agrees to execute and deliver to Silicon all
standard form applications and agreements of Silicon in connection with the
Cash Management Services, and, without limiting any of the terms of such
applications and agreements, Borrower will pay all standard fees and charges
of Silicon in connection with the Cash Management Services. The Cash
Management Services shall terminate on the Maturity Date.
2. SECURITY INTEREST.
2.1 SECURITY INTEREST. To secure the payment and performance of all of the
Obligations when due, Borrower hereby grants to Silicon a security interest
in all of Borrower's interest in the following, whether now owned or
hereafter acquired, and wherever located: All Inventory, Equipment,
Receivables, and General Intangibles, including, without limitation, all of
Borrower's Deposit Accounts, and all money, and all property now or at any
time in the future in Silicon's possession (including claims and credit
balances), and all proceeds (including proceeds of any insurance policies,
proceeds of proceeds and claims against third parties), all products and all
books and records related to any of the foregoing (all of the foregoing,
together with all other property in which Silicon may now or in the future be
granted a lien or security interest, is referred to herein, collectively, as
the "Collateral").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
In order to induce Silicon to enter into this Agreement and to make Loans,
Borrower represents and warrants to Silicon as follows, and Borrower covenants
that the following representations will continue to be true, and that Borrower
will at all times comply with all of the following covenants:
3.1 CORPORATE EXISTENCE AND AUTHORITY. Borrower, if a corporation, is and
will continue to be, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation. Borrower is and will
continue to be qualified and licensed to do business in all jurisdictions in
which any failure to do so would have a material adverse effect on Borrower.
The execution, delivery and performance by Borrower of this Agreement, and
all other documents contemplated hereby (i) have been duly and validly
authorized, (ii) are enforceable against Borrower in accordance with their
terms (except as enforcement may be limited by equitable principles and by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to creditors' rights generally), and (iii) do not violate Borrower's articles
or certificate of incorporation, or Borrower's by-laws, or any law or any
material agreement or instrument which is binding upon Borrower or its
property, and (iv) do not constitute grounds for acceleration of any material
indebtedness or obligation under any material agreement or instrument which
is binding upon Borrower or its property.
3.2 NAME; TRADE NAMES AND STYLES. The name of Borrower set forth in the
heading to this Agreement is its correct name. Listed on the Schedule are all
prior names of Borrower and all of Borrower's present and prior trade names.
Borrower shall give Silicon 30 days' prior written notice before changing its
name or doing business under any other name. Borrower has complied, and will
in the future comply, with all laws relating to the conduct of business under
a fictitious business name.
3.3 PLACE OF BUSINESS; LOCATION OF COLLATERAL. The address set forth in
the heading to this Agreement is Borrower's chief executive office. In
addition, Borrower has places of business and Collateral is located only at
the locations set forth on the Schedule. Borrower will give Silicon at least
30 days prior written notice before opening any additional place of business,
changing its chief executive office, or moving any of the Collateral to a
location other than Borrower's Address or one of the locations set forth on
the Schedule.
3.4 TITLE TO COLLATERAL; PERMITTED LIENS. Borrower is now, and will at all
times in the future be, the sole owner of all the Collateral, except for
items of Equipment which are leased by Borrower. The Collateral now is and
will remain free and clear of any and all liens, charges, security interests,
encumbrances and adverse claims, except for Permitted Liens. Silicon now has,
and will continue to have, a first-priority perfected and
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enforceable security interest in all of the Collateral, subject only to the
Permitted Liens, and Borrower will at all times defend Silicon and the
Collateral against all claims of others. None of the Collateral now is or
will be affixed to any real property in such a manner, or with such intent,
as to become a fixture. Borrower is not and will not become a lessee under
any real property lease pursuant to which the lessor may obtain any rights in
any of the Collateral and no such lease now prohibits, restrains, impairs or
will prohibit, restrain or impair Borrower's right to remove any Collateral
from the leased premises. Whenever any Collateral is located upon premises in
which any third party has an interest (whether as owner, mortgagee,
beneficiary under a deed of trust, lien or otherwise), Borrower shall,
whenever requested by Silicon, use its best efforts to cause such third party
to execute and deliver to Silicon, in form acceptable to Silicon, such
waivers and subordinations as Silicon shall specify, so as to ensure that
Silicon's rights in the Collateral are, and will continue to be, superior to
the rights of any such third party. Borrower will keep in full force and
effect, and will comply with all the terms of, any lease of real property
where any of the Collateral now or in the future may be located.
3.5 MAINTENANCE OF COLLATERAL. Borrower will maintain the Collateral in
good working condition, and Borrower will not use the Collateral for any
unlawful purpose. Borrower will immediately advise Silicon in writing of any
material loss or damage to the Collateral.
3.6 BOOKS AND RECORDS. Borrower has maintained and will maintain at
Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with generally accepted accounting principles.
3.7 FINANCIAL CONDITION, STATEMENTS AND REPORTS. All financial statements
now or in the future delivered to Silicon have been, and will be, prepared in
conformity with generally accepted accounting principles and now and in the
future will completely and accurately reflect the financial condition of
Borrower, at the times and for the periods therein stated. Between the last
date covered by any such statement provided to Silicon and the date hereof,
there has been no material adverse change in the financial condition or
business of Borrower. Borrower is now and will continue to be solvent.
3.8 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS. Borrower has timely
filed, and will timely file, all tax returns and reports required by foreign,
federal, state and local law, and Borrower has timely paid, and will timely
pay, all foreign, federal, state and local taxes, assessments, deposits and
contributions now or in the future owed by Borrower. Borrower may, however,
defer payment of any contested taxes, provided that Borrower (i) in good
faith contests Borrower's obligation to pay the taxes by appropriate
proceedings promptly and diligently instituted and conducted, (ii) notifies
Silicon in writing of the commencement of, and any material development in,
the proceedings, and (iii) posts bonds or takes any other steps required to
keep the contested taxes from becoming a lien upon any of the Collateral.
Borrower is unaware of any claims or adjustments proposed for any of
Borrower's prior tax years which could result in additional taxes becoming
due and payable by Borrower. Borrower has paid, and shall continue to pay all
amounts necessary to fund all present and future pension, profit sharing and
deferred compensation plans in accordance with their terms, and Borrower has
not and will not withdraw from participation in, permit partial or complete
termination of, or permit the occurrence of any other event with respect to,
any such plan which could result in any liability of Borrower, including any
liability to the Pension Benefit Guaranty Corporation or its successors or
any other governmental agency. Borrower shall, at all times, utilize the
services of an outside payroll service providing for the automatic deposit of
all payroll taxes payable by Borrower.
3.9 COMPLIANCE WITH LAW. Borrower has complied, and will comply, in all
material respects, with all provisions of all foreign, federal, state and
local laws and regulations relating to Borrower, including, but not limited
to, those relating to Borrower's ownership of real or personal property, the
conduct and licensing of Borrower's business, and all environmental matters.
3.10 LITIGATION. Except as disclosed in the Schedule, there is no claim,
suit, litigation, proceeding or investigation pending or (to best of
Borrower's knowledge) threatened by or against or affecting Borrower in any
court or before any governmental agency (or any basis therefor known to
Borrower) which may result, either separately or in the aggregate, in any
material adverse change in the financial condition or business of Borrower,
or in any material impairment in the ability of Borrower to carry on its
business in substantially the same manner as it is now being conducted.
Borrower will promptly inform Silicon in writing of any claim, proceeding,
litigation or investigation in the future threatened or instituted by or
against Borrower involving any single claim of $50,000 or more, or involving
$100,000 or more in the aggregate.
3.11 USE OF PROCEEDS. All proceeds of all Loans shall be used solely for
lawful business purposes. Borrower is not purchasing or carrying any "margin
stock" (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) and no part of the proceeds of any Loan will be used to
purchase or carry any "margin stock" or to extend credit to others for the
purpose of purchasing or carrying any "margin stock."
4. RECEIVABLES.
4.1 REPRESENTATIONS RELATING TO RECEIVABLES. Borrower represents and
warrants to Silicon as follows: Each Receivable with respect to which Loans
are requested by Borrower shall, on the date each Loan is requested and made,
(i) represent an undisputed bona fide existing unconditional obligation of
the Account Debtor created by the sale, delivery, and acceptance of goods or
the rendition of services in the ordinary course of
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Borrower's business, and (ii) meet the Minimum Eligibility Requirements set
forth in Section 8 below.
4.2 REPRESENTATIONS RELATING TO DOCUMENTS AND LEGAL COMPLIANCE. Borrower
represents and warrants to Silicon as follows: All statements made and all
unpaid balances appearing in all invoices, instruments and other documents
evidencing the Receivables are and shall be true and correct and all such
invoices, instruments and other documents and all of Borrower's books and
records are and shall be genuine and in all respects what they purport to be,
and all signatories and endorsers have the capacity to contract. All sales
and other transactions underlying or giving rise to each Receivable shall
fully comply with all applicable laws and governmental rules and regulations.
All signatures and endorsements on all documents, instruments, and agreements
relating to all Receivables are and shall be genuine, and all such documents,
instruments and agreements are and shall be legally enforceable in accordance
with their terms.
4.3 SCHEDULES AND DOCUMENTS RELATING TO RECEIVABLES. Borrower shall
deliver to Silicon transaction reports and loan requests, schedules and
assignments of all Receivables, and schedules of collections, all on
Silicon's standard forms; provided, however, that Borrower's failure to
execute and deliver the same shall not affect or limit Silicon's security
interest and other rights in all of Borrower's Receivables, nor shall
Silicon's failure to advance or lend against a specific Receivable affect or
limit Silicon's security interest and other rights therein. Loan requests
received after 12:00 Noon will not be considered by Silicon until the next
Business Day. Together with each such schedule and assignment, or later if
requested by Silicon, Borrower shall furnish Silicon with copies (or, at
Silicon's request, originals) of all contracts, orders, invoices, and other
similar documents, and all original shipping instructions, delivery receipts,
bills of lading, and other evidence of delivery, for any goods the sale or
disposition of which gave rise to such Receivables, and Borrower warrants the
genuineness of all of the foregoing. Borrower shall also furnish to Silicon
an aged accounts receivable trial balance in such form and at such intervals
as Silicon shall request. In addition, Borrower shall deliver to Silicon the
originals of all instruments, chattel paper, security agreements, guarantees
and other documents and property evidencing or securing any Receivables,
immediately upon receipt thereof and in the same form as received, with all
necessary indorsements, all of which shall be with recourse. Borrower shall
also provide Silicon with copies of all credit memos within two days after
the date issued.
4.4 COLLECTION OF RECEIVABLES. Borrower shall have the right to collect
all Receivables, unless and until a Default or an Event of Default has
occurred. Borrower shall hold all payments on, and proceeds of, Receivables
in trust for Silicon, and Borrower shall immediately deliver all such
payments and proceeds to Silicon in their original form, duly endorsed in
blank, to be applied to the Obligations in such order as Silicon shall
determine. Silicon may, in its discretion, require that all proceeds of
Collateral be deposited by Borrower into a lockbox account, or such other
"blocked account" as Silicon may specify, pursuant to a blocked account
agreement in such form as Silicon may specify. Silicon or its designee may,
at any time, notify Account Debtors that the Receivables have been assigned
to Silicon.
4.5. REMITTANCE OF PROCEEDS. All proceeds arising from the disposition of
any Collateral shall be delivered, in kind, by Borrower to Silicon in the
original form in which received by Borrower not later than the following
Business Day after receipt by Borrower, to be applied to the Obligations in
such order as Silicon shall determine; provided that, if no Default or Event
of Default has occurred, Borrower shall not be obligated to remit to Silicon
the proceeds of the sale of worn out or obsolete equipment disposed of by
Borrower in good faith in an arm's length transaction for an aggregate
purchase price of $25,000 or less (for all such transactions in any fiscal
year). Borrower agrees that it will not commingle proceeds of Collateral with
any of Borrower's other funds or property, but will hold such proceeds
separate and apart from such other funds and property and in an express trust
for Silicon. Nothing in this Section limits the restrictions on disposition
of Collateral set forth elsewhere in this Agreement.
4.6 DISPUTES. Borrower shall notify Silicon promptly of all disputes or
claims relating to Receivables. Borrower shall not forgive (completely or
partially), compromise or settle any Receivable for less than payment in
full, or agree to do any of the foregoing, except that Borrower may do so,
provided that: (i) Borrower does so in good faith, in a commercially
reasonable manner, in the ordinary course of business, and in arm's length
transactions, which are reported to Silicon on the regular reports provided
to Silicon; (ii) no Default or Event of Default has occurred and is
continuing; and (iii) taking into account all such discounts settlements and
forgiveness, the total outstanding Loans will not exceed the Credit Limit.
Silicon may, at any time after the occurrence of an Event of Default, settle
or adjust disputes or claims directly with Account Debtors for amounts and
upon terms which Silicon considers advisable in its reasonable credit
judgment and, in all cases, Silicon shall credit Borrower's Loan account with
only the net amounts received by Silicon in payment of any Receivables.
4.7 RETURNS. Provided no Event of Default has occurred and is continuing,
if any Account Debtor returns any Inventory to Borrower in the ordinary
course of its business, Borrower shall promptly determine the reason for such
return and promptly issue a credit memorandum to the Account Debtor in the
appropriate amount (sending a copy to Silicon). In the event any attempted
return occurs after the occurrence of any Event of Default, Borrower shall
(i) hold the returned Inventory in trust for Silicon, (ii) segregate all
returned Inventory from all of Borrower's other property, (iii) conspicuously
label the
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returned Inventory as Silicon's property, and (iv) immediately notify Silicon
of the return of any Inventory, specifying the reason for such return, the
location and condition of the returned Inventory, and on Silicon's request
deliver such returned Inventory to Silicon.
4.8 VERIFICATION. Silicon may, from time to time, verify directly with the
respective Account Debtors the validity, amount and other matters relating to
the Receivables, by means of mail, telephone or otherwise, either in the name of
Borrower or Silicon or such other name as Silicon may choose.
4.9 NO LIABILITY. Silicon shall not under any circumstances be responsible or
liable for any shortage or discrepancy in, damage to, or loss or destruction of,
any goods, the sale or other disposition of which gives rise to a Receivable, or
for any error, act, omission, or delay of any kind occurring in the settlement,
failure to settle, collection or failure to collect any Receivable, or for
settling any Receivable in good faith for less than the full amount thereof, nor
shall Silicon be deemed to be responsible for any of Borrower's obligations
under any contract or agreement giving rise to a Receivable. Nothing herein
shall, however, relieve Silicon from liability for its own gross negligence or
willful misconduct.
5. ADDITIONAL DUTIES OF THE BORROWER.
5.1 FINANCIAL AND OTHER COVENANTS. Borrower shall at all times comply with the
financial and other covenants set forth in the Schedule.
5.2 INSURANCE. Borrower shall, at all times insure all of the tangible personal
property Collateral and carry such other business insurance, with insurers
reasonably acceptable to Silicon, in such form and amounts as Silicon may
reasonably require, and Borrower shall provide evidence of such insurance to
Silicon, so that Silicon is satisfied that such insurance is, at all times, in
full force and effect. All such insurance policies shall name Silicon as an
additional loss payee, and shall contain a lenders loss payee endorsement in
form reasonably acceptable to Silicon. Upon receipt of the proceeds of any such
insurance, Silicon shall apply such proceeds in reduction of the Obligations as
Silicon shall determine in its sole discretion, except that, provided no Default
or Event of Default has occurred and is continuing, Silicon shall release to
Borrower insurance proceeds with respect to Equipment totaling less than
$100,000, which shall be utilized by Borrower for the replacement of the
Equipment with respect to which the insurance proceeds were paid. Silicon may
require reasonable assurance that the insurance proceeds so released will be so
used. If Borrower fails to provide or pay for any insurance, Silicon may, but is
not obligated to, obtain the same at Borrower's expense. Borrower shall promptly
deliver to Silicon copies of all reports made to insurance companies.
5.3 REPORTS. Borrower, at its expense, shall provide Silicon with the written
reports set forth in the Schedule, and such other written reports with respect
to Borrower (including budgets, sales projections, operating plans and other
financial documentation), as Silicon shall from time to time reasonably specify.
5.4 ACCESS TO COLLATERAL, BOOKS AND RECORDS. At reasonable times, and on one
Business Day's notice, Silicon, or its agents, shall have the right to inspect
the Collateral, and the right to audit and copy Borrower's books and records.
Silicon shall take reasonable steps to keep confidential all information
obtained in any such inspection or audit, but Silicon shall have the right to
disclose any such information to its auditors, regulatory agencies, and
attorneys, and pursuant to any subpoena or other legal process. The foregoing
inspections and audits shall be at Borrower's expense and the charge therefor
shall be $600 per person per day (or such higher amount as shall represent
Silicon's then current standard charge for the same), plus reasonable out of
pocket expenses. Borrower will not enter into any agreement with any accounting
firm, service bureau or third party to store Borrower's books or records at any
location other than Borrower's Address, without first obtaining Silicon's
written consent, which may be conditioned upon such accounting firm, service
bureau or other third party agreeing to give Silicon the same rights with
respect to access to books and records and related rights as Silicon has under
this Loan Agreement. Borrower waives the benefit of any accountant-client
privilege or other evidentiary privilege precluding or limiting the disclosure,
divulgence or delivery of any of its books and records (except that Borrower
does not waive any attorney-client privilege).
5.5 NEGATIVE COVENANTS. Except as may be permitted in the Schedule, Borrower
shall not, without Silicon's prior written consent, do any of the following: (i)
merge or consolidate with another corporation or entity; (ii) acquire any
assets, except in the ordinary course of business; (iii) enter into any other
transaction outside the ordinary course of business; (iv) sell or transfer any
Collateral, except for the sale of finished Inventory in the ordinary course of
Borrower's business, and except for the sale of obsolete or unneeded Equipment
in the ordinary course of business; (v) store any Inventory or other Collateral
with any warehouseman or other third party; (vi) sell any Inventory on a
sale-or-return, guaranteed sale, consignment, or other contingent basis; (vii)
make any loans of any money or other assets; (viii) incur any debts, outside the
ordinary course of business, which would have a material, adverse effect on
Borrower or on the prospect of repayment of the Obligations; (ix) guarantee or
otherwise become liable with respect to the obligations of another party or
entity; (x) pay or declare any dividends on Borrower's stock (except for
dividends payable solely in stock of Borrower); (xi) redeem, retire, purchase or
otherwise acquire, directly or indirectly, any of Borrower's stock; (xii) make
any change in Borrower's capital structure which would have a material adverse
effect on Borrower or on the prospect of repayment of the Obligations; or (xiii)
pay total compensation, including salaries, fees, bonuses, commissions, and all
other
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payments, whether directly or indirectly, in money or otherwise, to
Borrower's executives, officers and directors (or any relative thereof) in an
amount in excess of the amount set forth on the Schedule; or (xiv) dissolve
or elect to dissolve. Transactions permitted by the foregoing provisions of
this Section are only permitted if no Default or Event of Default would occur
as a result of such transaction.
5.6 LITIGATION COOPERATION. Should any third-party suit or proceeding be
instituted by or against Silicon with respect to any Collateral or in any manner
relating to Borrower, Borrower shall, without expense to Silicon, make available
Borrower and its officers, employees and agents and Borrower's books and
records, to the extent that Silicon may deem them reasonably necessary in order
to prosecute or defend any such suit or proceeding.
5.7 FURTHER ASSURANCES. Borrower agrees, at its expense, on request by Silicon,
to execute all documents and take all actions, as Silicon, may deem reasonably
necessary or useful in order to perfect and maintain Silicon's perfected
security interest in the Collateral, and in order to fully consummate the
transactions contemplated by this Agreement.
6. TERM.
6.1 MATURITY DATE. This Agreement shall continue in effect until the maturity
date set forth on the Schedule (the "Maturity Date"), subject to Section 6.3
below.
6.2 EARLY TERMINATION. This Agreement may be terminated prior to the Maturity
Date as follows: (i) by Borrower, effective three Business Days after written
notice of termination is given to Silicon; or (ii) by Silicon at any time after
the occurrence of an Event of Default, without notice, effective immediately. If
this Agreement is terminated by Borrower or by Silicon under this Section 6.2,
Borrower shall pay to Silicon a termination fee in an amount equal to* of the
Maximum Credit Limit, provided that no termination fee shall be charged if the
credit facility hereunder is replaced with a new facility from another division
of Silicon Valley Bank. The termination fee shall be due and payable on the
effective date of termination and thereafter shall bear interest at a rate equal
to the highest rate applicable to any of the Obligations.
*ONE PERCENT (1.0%)
6.3 PAYMENT OF OBLIGATIONS. On the Maturity Date or on any earlier effective
date of termination, Borrower shall pay and perform in full all Obligations,
whether evidenced by installment notes or otherwise, and whether or not all or
any part of such Obligations are otherwise then due and payable. Without
limiting the generality of the foregoing, if on the Maturity Date, or on any
earlier effective date of termination, there are any outstanding Letters of
Credit issued by Silicon or issued by another institution based upon an
application, guarantee, indemnity or similar agreement on the part of Silicon,
then on such date Borrower shall provide to Silicon cash collateral in an amount
equal to the face amount of all such Letters of Credit plus all interest, fees
and cost due or to become due in connection therewith, to secure all of the
Obligations relating to said Letters of Credit, pursuant to Silicon's then
standard form cash pledge agreement. Notwithstanding any termination of this
Agreement, all of Silicon's security interests in all of the Collateral and all
of the terms and provisions of this Agreement shall continue in full force and
effect until all Obligations have been paid and performed in full; provided
that, without limiting the fact that Loans are subject to the discretion of
Silicon, Silicon may, in its sole discretion, refuse to make any further Loans
after termination. No termination shall in any way affect or impair any right or
remedy of Silicon, nor shall any such termination relieve Borrower of any
Obligation to Silicon, until all of the Obligations have been paid and performed
in full. Upon payment and performance in full of all the Obligations and
termination of this Agreement, Silicon shall promptly deliver to Borrower
termination statements, requests for reconveyances and such other documents as
may be required to fully terminate Silicon's security interests.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an "Event of Default" under this Agreement, and Borrower shall give
Silicon immediate written notice thereof: (a) Any warranty, representation,
statement, report or certificate made or delivered to Silicon by Borrower or any
of Borrower's officers, employees or agents, now or in the future, shall be
untrue or misleading in a material respect; or (b) Borrower shall fail to pay
when due any Loan or any interest thereon or any other monetary Obligation; or
(c) the total Loans and other Obligations outstanding at any time shall exceed
the Credit Limit; or (d) Borrower shall fail to comply with any of the financial
covenants set forth in the Schedule* or shall fail to perform any other
non-monetary Obligation which by its nature cannot be cured; or (e) Borrower
shall fail to perform any other non-monetary Obligation, which failure is not
cured within 5 Business Days after the date due; or (f) any levy, assessment,
attachment, seizure, lien or encumbrance (other than a Permitted Lien) is made
on all or any part of the Collateral which is not cured within 10 days after the
occurrence of the same; or (g) any default or event of default occurs under any
obligation secured by a Permitted Lien, which is not cured within any applicable
cure period or waived in writing by the holder of the Permitted Lien; or (h)
Borrower breaches any material contract or obligation, which has or may
reasonably be expected to have a material adverse effect on Borrower's business
or financial condition; or (i) Dissolution, termination of existence, insolvency
or business failure of Borrower; or appointment of a receiver, trustee or
custodian, for all or any part of the property of, assignment for the benefit of
creditors by, or the commencement of any proceeding by Borrower under any
reorganization, bankruptcy, insolvency, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction,
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now or in the future in effect; or (j) the commencement of any proceeding
against Borrower or any guarantor of any of the Obligations under any
reorganization, bankruptcy, insolvency, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or in the
future in effect, which is not cured by the dismissal thereof within 30 days
after the date commenced; or (k) revocation or termination of, or limitation
or denial of liability upon, any guaranty of the Obligations or any attempt
to do any of the foregoing, or commencement of proceedings by any guarantor
of any of the Obligations under any bankruptcy or insolvency law; or (l)
revocation or termination of, or limitation or denial of liability upon, any
pledge of any certificate of deposit, securities or other property or asset
of any kind pledged by any third party to secure any or all of the
Obligations, or any attempt to do any of the foregoing, or commencement of
proceedings by or against any such third party under any bankruptcy or
insolvency law; or (m) Borrower makes any payment on account of any
indebtedness or obligation which has been subordinated to the Obligations
other than as permitted in the applicable subordination agreement, or if any
Person who has subordinated such indebtedness or obligations terminates or in
any way limits his subordination agreement; or (n) there shall be a change in
the record or beneficial ownership of an aggregate of more than 20% of the
outstanding shares of stock of Borrower, in one or more transactions,
compared to the ownership of outstanding shares of stock of Borrower in
effect on the date hereof, without the prior written consent of Silicon; or
(o) Borrower shall generally not pay its debts as they become due, or
Borrower shall conceal, remove or transfer any part of its property, with
intent to hinder, delay or defraud its creditors, or make or suffer any
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or (p) there shall be a material
adverse change in Borrower's business or financial condition; or (q) Silicon,
acting in good faith and in a commercially reasonable manner, deems itself
insecure because of the occurrence of an event prior to the effective date
hereof of which Silicon had no knowledge on the effective date or because of
the occurrence of an event on or subsequent to the effective date. Silicon
may cease making any Loans hereunder during any of the above cure periods,
and thereafter if an Event of Default has occurred.
*(PROVIDED, HOWEVER, BORROWER'S FAILURE TO COMPLY WITH THE PROFITABILITY
FINANCIAL COVENANT SET FORTH IN THE SCHEDULE WILL NOT BE DEEMED AN EVENT OF
DEFAULT HEREUNDER UNLESS BORROWER ALSO FAILS TO COMPLY WITH THE MINIMUM TANGIBLE
NET WORTH FINANCIAL COVENANT SET FORTH IN THE SCHEDULE)
7.2 REMEDIES. Upon the occurrence of any Event of Default, and at any time
thereafter, Silicon, at its option, and without notice or demand of any kind
(all of which are hereby expressly waived by Borrower), may do any one or more
of the following: (a) Cease making Loans or otherwise extending credit to
Borrower under this Agreement or any other document or agreement; (b) Accelerate
and declare all or any part of the Obligations to be immediately due, payable,
and performable, notwithstanding any deferred or installment payments allowed by
any instrument evidencing or relating to any Obligation; (c) Take possession of
any or all of the Collateral wherever it may be found, and for that purpose
Borrower hereby authorizes Silicon without judicial process to enter onto any of
Borrower's premises without interference to search for, take possession of,
keep, store, or remove any of the Collateral, and remain on the premises or
cause a custodian to remain on the premises in exclusive control thereof,
without charge for so long as Silicon deems it reasonably necessary in order to
complete the enforcement of its rights under this Agreement or any other
agreement; provided, however, that should Silicon seek to take possession of any
of the Collateral by Court process, Borrower hereby irrevocably waives: (i) any
bond and any surety or security relating thereto required by any statute, court
rule or otherwise as an incident to such possession; (ii) any demand for
possession prior to the commencement of any suit or action to recover possession
thereof; and (iii) any requirement that Silicon retain possession of, and not
dispose of, any such Collateral until after trial or final judgment; (d) Require
Borrower to assemble any or all of the Collateral and make it available to
Silicon at places designated by Silicon which are reasonably convenient to
Silicon and Borrower, and to remove the Collateral to such locations as Silicon
may deem advisable; (e) Complete the processing, manufacturing or repair of any
Collateral prior to a disposition thereof and, for such purpose and for the
purpose of removal, Silicon shall have the right to use Borrower's premises,
vehicles, hoists, lifts, cranes, equipment and all other property without
charge; (f) Sell, lease or otherwise dispose of any of the Collateral, in its
condition at the time Silicon obtains possession of it or after further
manufacturing, processing or repair, at one or more public and/or private sales,
in lots or in bulk, for cash, exchange or other property, or on credit, and to
adjourn any such sale from time to time without notice other than oral
announcement at the time scheduled for sale. Silicon shall have the right to
conduct such disposition on Borrower's premises without charge, for such time or
times as Silicon deems reasonable, or on Silicon's premises, or elsewhere and
the Collateral need not be located at the place of disposition. Silicon may
directly or through any affiliated company purchase or lease any Collateral at
any such public disposition, and if permissible under applicable law, at any
private disposition. Any sale or other disposition of Collateral shall not
relieve Borrower of any liability Borrower may have if any Collateral is
defective as to title or physical condition or otherwise at the time of sale;
(g) Demand payment of, and collect any Receivables and General Intangibles
comprising Collateral and, in connection therewith, Borrower irrevocably
authorizes Silicon to endorse or sign Borrower's name on all collections,
receipts, instruments and other documents, to take possession of and open mail
addressed to Borrower and remove
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therefrom payments made with respect to any item of the Collateral or
proceeds thereof, and, in Silicon's sole discretion, to grant extensions of
time to pay, compromise claims and settle Receivables and the like for less
than face value; (h) Offset against any sums in any of Borrower's general,
special or other Deposit Accounts with Silicon; and (i) Demand and receive
possession of any of Borrower's federal and state income tax returns and the
books and records utilized in the preparation thereof or referring thereto.
All reasonable attorneys' fees, expenses, costs, liabilities and obligations
incurred by Silicon with respect to the foregoing shall be added to and
become part of the Obligations, shall be due on demand, and shall bear
interest at a rate equal to the highest interest rate applicable to any of
the Obligations. Without limiting any of Silicon's rights and remedies, from
and after the occurrence of any Event of Default, the interest rate
applicable to the Obligations shall be increased by an additional four
percent per annum.
7.3 STANDARDS FOR DETERMINING COMMERCIAL REASONABLENESS. Borrower and Silicon
agree that a sale or other disposition (collectively, "sale") of any Collateral
which complies with the following standards will conclusively be deemed to be
commercially reasonable: (i) Notice of the sale is given to Borrower at least
seven days prior to the sale, and, in the case of a public sale, notice of the
sale is published at least seven days before the sale in a newspaper of general
circulation in the county where the sale is to be conducted; (ii) Notice of the
sale describes the collateral in general, non-specific terms; (iii) The sale is
conducted at a place designated by Silicon, with or without the Collateral being
present; (iv) The sale commences at any time between 8:00 a.m. and 6:00 p.m.;
(v) Payment of the purchase price in cash or by cashier's check or wire transfer
is required; (vi) With respect to any sale of any of the Collateral, Silicon may
(but is not obligated to) direct any prospective purchaser to ascertain directly
from Borrower any and all information concerning the same. Silicon shall be free
to employ other methods of noticing and selling the Collateral, in its
discretion, if they are commercially reasonable.
7.4 POWER OF ATTORNEY. Upon the occurrence of any Event of Default, without
limiting Silicon's other rights and remedies, Borrower grants to Silicon an
irrevocable power of attorney coupled with an interest, authorizing and
permitting Silicon (acting through any of its employees, attorneys or agents) at
any time, at its option, but without obligation, with or without notice to
Borrower, and at Borrower's expense, to do any or all of the following, in
Borrower's name or otherwise, but Silicon agrees to exercise the following
powers in a commercially reasonable manner: (a) Execute on behalf of Borrower
any documents that Silicon may, in its sole discretion, deem advisable in order
to perfect and maintain Silicon's security interest in the Collateral, or in
order to exercise a right of Borrower or Silicon, or in order to fully
consummate all the transactions contemplated under this Agreement, and all other
present and future agreements; (b) Execute on behalf of Borrower any document
exercising, transferring or assigning any option to purchase, sell or otherwise
dispose of or to lease (as lessor or lessee) any real or personal property which
is part of Silicon's Collateral or in which Silicon has an interest; (c) Execute
on behalf of Borrower, any invoices relating to any Receivable, any draft
against any Account Debtor and any notice to any Account Debtor, any proof of
claim in bankruptcy, any Notice of Lien, claim of mechanic's, materialman's or
other lien, or assignment or satisfaction of mechanic's, materialman's or other
lien; (d) Take control in any manner of any cash or non-cash items of payment or
proceeds of Collateral; endorse the name of Borrower upon any instruments, or
documents, evidence of payment or Collateral that may come into Silicon's
possession; (e) Endorse all checks and other forms of remittances received by
Silicon; (f) Pay, contest or settle any lien, charge, encumbrance, security
interest and adverse claim in or to any of the Collateral, or any judgment based
thereon, or otherwise take any action to terminate or discharge the same; (g)
Grant extensions of time to pay, compromise claims and settle Receivables and
General Intangibles for less than face value and execute all releases and other
documents in connection therewith; (h) Pay any sums required on account of
Borrower's taxes or to secure the release of any liens therefor, or both; (i)
Settle and adjust, and give releases of, any insurance claim that relates to any
of the Collateral and obtain payment therefor; (j) Instruct any third party
having custody or control of any books or records belonging to, or relating to,
Borrower to give Silicon the same rights of access and other rights with respect
thereto as Silicon has under this Agreement; and (k) Take any action or pay any
sum required of Borrower pursuant to this Agreement and any other present or
future agreements. Any and all reasonable sums paid and any and all reasonable
costs, expenses, liabilities, obligations and attorneys' fees incurred by
Silicon with respect to the foregoing shall be added to and become part of the
Obligations, shall be payable on demand, and shall bear interest at a rate equal
to the highest interest rate applicable to any of the Obligations. In no event
shall Silicon's rights under the foregoing power of attorney or any of Silicon's
other rights under this Agreement be deemed to indicate that Silicon is in
control of the business, management or properties of Borrower.
7.5 APPLICATION OF PROCEEDS. All proceeds realized as the result of any sale of
the Collateral shall be applied by Silicon first to the reasonable costs,
expenses, liabilities, obligations and attorneys' fees incurred by Silicon in
the exercise of its rights under this Agreement, second to the interest due upon
any of the Obligations, and third to the principal of the Obligations, in such
order as Silicon shall determine in its sole discretion. Any surplus shall be
paid to Borrower or other persons legally entitled thereto; Borrower shall
remain liable to Silicon for any deficiency. If, Silicon, in its sole
discretion, directly or indirectly enters into a deferred payment or other
credit transaction with any purchaser at any sale of Collateral, Silicon shall
have the option, exercisable at any time, in
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its sole discretion, of either reducing the Obligations by the principal
amount of purchase price or deferring the reduction of the Obligations until
the actual receipt by Silicon of the cash therefor.
7.6 REMEDIES CUMULATIVE. In addition to the rights and remedies set
forth in this Agreement, Silicon shall have all the other rights and remedies
accorded a secured party under the California Uniform Commercial Code and
under all other applicable laws, and under any other instrument or agreement
now or in the future entered into between Silicon and Borrower, and all of
such rights and remedies are cumulative and none is exclusive. Exercise or
partial exercise by Silicon of one or more of its rights or remedies shall
not be deemed an election, nor bar Silicon from subsequent exercise or
partial exercise of any other rights or remedies. The failure or delay of
Silicon to exercise any rights or remedies shall not operate as a waiver
thereof, but all rights and remedies shall continue in full force and effect
until all of the Obligations have been fully paid and performed.
8. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"ACCOUNT DEBTOR" means the obligor on a Receivable.
"AFFILIATE" means, with respect to any Person, a relative, partner,
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of such Person, or any Person controlling, controlled by or under
common control with such Person.
"BUSINESS DAY" means a day on which Silicon is open for business.
"CODE" means the Uniform Commercial Code as adopted and in effect in
the State of California from time to time.
"COLLATERAL" has the meaning set forth in Section 2.1 above.
"DEFAULT" means any event which with notice or passage of time or
both, would constitute an Event of Default.
"DEPOSIT ACCOUNT" has the meaning set forth in Section 9105 of the
Code.
"ELIGIBLE INVENTORY" [NOT APPLICABLE].
"ELIGIBLE RECEIVABLES" means Receivables arising in the ordinary
course of Borrower's business from the sale of goods or rendition of
services, which Silicon, in its sole judgment, shall deem eligible for
borrowing, based on such considerations as Silicon may from time to time deem
appropriate. Without limiting the fact that the determination of which
Receivables are eligible for borrowing is a matter of Silicon's discretion,
the following (the "MINIMUM ELIGIBILITY REQUIREMENTS") are the minimum
requirements for a Receivable to be an Eligible Receivable: (i) the
Receivable must not be outstanding for more than 90 days from its invoice
date, (ii) the Receivable must not represent progress billings, or be due
under a fulfillment or requirements contract with the Account Debtor, (iii)
the Receivable must not be subject to any contingencies (including
Receivables arising from sales on consignment, guaranteed sale or other terms
pursuant to which payment by the Account Debtor may be conditional), (iv) the
Receivable must not be owing from an Account Debtor with whom the Borrower
has any dispute (whether or not relating to the particular Receivable), (v)
the Receivable must not be owing from an Affiliate of Borrower, (vi) the
Receivable must not be owing from an Account Debtor which is subject to any
insolvency or bankruptcy proceeding, or whose financial condition is not
acceptable to Silicon, or which, fails or goes out of a material portion of
its business, (vii) the Receivable must not be owing from the United States
or any department, agency or instrumentality thereof (unless there has been
compliance, to Silicon's satisfaction, with the United States Assignment of
Claims Act), (viii) the Receivable must not be owing from an Account Debtor
located outside the United States or Canada (unless pre-approved by Silicon
in its discretion in writing, or backed by a letter of credit satisfactory to
Silicon, or FCIA insured satisfactory to Silicon), (ix) the Receivable must
not be owing from an Account Debtor to whom Borrower is or may be liable for
goods purchased from such Account Debtor or otherwise. Receivables owing from
one Account Debtor will not be deemed Eligible Receivables to the extent they
exceed 25% of the total Receivables outstanding. In addition, if more than
50% of the Receivables owing from an Account Debtor are outstanding more than
90 days from their invoice date (without regard to unapplied credits) or are
otherwise not eligible Receivables, then all Receivables owing from that
Account Debtor will be deemed ineligible for borrowing. Silicon may, from
time to time, in its discretion, revise the Minimum Eligibility Requirements,
upon written notice to the Borrower.
"EQUIPMENT" means all of Borrower's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Borrower's operations or owned by Borrower and any
interest in any of the foregoing, and all attachments, accessories,
accessions, replacements, substitutions, additions or improvements to any of
the foregoing, wherever located.
"EVENT OF DEFAULT" means any of the events set forth in Section 7.1
of this Agreement.
"GENERAL INTANGIBLES" means all general intangibles of Borrower,
whether now owned or hereafter created or acquired by Borrower, including,
without limitation, all choses in action, causes of action, corporate or
other business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer
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lists, security and other deposits, rights in all litigation presently or
hereafter pending for any cause or claim (whether in contract, tort or
otherwise), and all judgments now or hereafter arising therefrom, all claims
of Borrower against Silicon, rights to purchase or sell real or personal
property, rights as a licensor or licensee of any kind, royalties, telephone
numbers, proprietary information, purchase orders, and all insurance policies
and claims (including without limitation life insurance, key man insurance,
credit insurance, liability insurance, property insurance and other
insurance), tax refunds and claims, computer programs, discs, tapes and tape
files, claims under guaranties, security interests or other security held by
or granted to Borrower, all rights to indemnification and all other
intangible property of every kind and nature (other than Receivables).
"INVENTORY" means all of Borrower's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Borrower's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"OBLIGATIONS" means all present and future Loans, advances, debts,
liabilities, obligations, guaranties, covenants, duties and indebtedness at
any time owing by Borrower to Silicon, whether evidenced by this Agreement or
any note or other instrument or document, whether arising from an extension
of credit, opening of a letter of credit, banker's acceptance, loan,
guaranty, indemnification or otherwise, whether direct or indirect
(including, without limitation, those acquired by assignment and any
participation by Silicon in Borrower's debts owing to others), absolute or
contingent, due or to become due, including, without limitation, all
interest, charges, expenses, fees, attorney's fees, expert witness fees,
audit fees, letter of credit fees, collateral monitoring fees, closing fees,
facility fees, termination fees, minimum interest charges and any other sums
chargeable to Borrower under this Agreement or under any other present or
future instrument or agreement between Borrower and Silicon.
"PERMITTED LIENS" means the following: (i) purchase money security
interests in specific items of Equipment; (ii) leases of specific items of
Equipment; (iii) liens for taxes not yet payable; (iv) additional security
interests and liens consented to in writing by Silicon, which consent shall
not be unreasonably withheld; (v) security interests being terminated
substantially concurrently with this Agreement; (vi) liens of materialmen,
mechanics, warehousemen, carriers, or other similar liens arising in the
ordinary course of business and securing obligations which are not
delinquent; (vii) liens incurred in connection with the extension, renewal or
refinancing of the indebtedness secured by liens of the type described above
in clauses (i) or (ii) above, provided that any extension, renewal or
replacement lien is limited to the property encumbered by the existing lien
and the principal amount of the indebtedness being extended, renewed or
refinanced does not increase; (viii) Liens in favor of customs and revenue
authorities which secure payment of customs duties in connection with the
importation of goods. Silicon will have the right to require, as a condition
to its consent under subparagraph (iv) above, that the holder of the
additional security interest or lien sign an intercreditor agreement on
Silicon's then standard form, acknowledge that the security interest is
subordinate to the security interest in favor of Silicon, and agree not to
take any action to enforce its subordinate security interest so long as any
Obligations remain outstanding, and that Borrower agree that any uncured
default in any obligation secured by the subordinate security interest shall
also constitute an Event of Default under this Agreement.
"PERSON" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
government, or any agency or political division thereof, or any other entity.
"RECEIVABLES" means all of Borrower's now owned and hereafter
acquired accounts (whether or not earned by performance), letters of credit,
contract rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Borrower, all guaranties and other security therefor, all
merchandise returned to or repossessed by Borrower, and all rights of
stoppage in transit and all other rights or remedies of an unpaid vendor,
lienor or secured party.
"RESERVES" means, as of any date of determination, such amounts as
Silicon may from time to time establish and revise in good faith reducing the
amount of Loans, Letters of Credit and other financial accommodations which
would otherwise be available to Borrower under the lending formula(s)
provided in the Schedule: (a) to reflect events, conditions, contingencies or
risks which, as determined by Silicon in good faith, do or may affect (i) the
Collateral or any other property which is security for the Obligations or its
value (including without limitation any increase in delinquencies of
Receivables), (ii) the assets, business or prospects of Borrower or any
Guarantor, or (iii) the security interests and other rights of Silicon in the
Collateral (including the enforceability, perfection and priority thereof);
or (b) to reflect Silicon's good faith belief that any collateral report or
financial information furnished by or on behalf of Borrower or any Guarantor
to Silicon is or may have been incomplete, inaccurate or misleading in any
material respect; or (c) in respect of any state of facts which Silicon
determines in good faith constitutes an Event of Default or may, with notice
or passage of time or both, constitute an Event of Default.
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OTHER TERMS. All accounting terms used in this Agreement, unless
otherwise indicated, shall have the meanings given to such terms in
accordance with generally accepted accounting principles, consistently
applied. All other terms contained in this Agreement, unless otherwise
indicated, shall have the meanings provided by the Code, to the extent such
terms are defined therein.
9. GENERAL PROVISIONS.
9.1 INTEREST COMPUTATION. In computing interest on the Obligations, all
checks, wire transfers and other items of payment received by Silicon
(including proceeds of Receivables and payment of the Obligations in full)
shall be deemed applied by Silicon on account of the Obligations three
Business Days after receipt by Silicon of immediately available funds, and,
for purposes of the foregoing, any such funds received after 12:00 Noon on
any day shall be deemed received on the next Business Day. Silicon shall not,
however, be required to credit Borrower's account for the amount of any item
of payment which is unsatisfactory to Silicon in its sole discretion, and
Silicon may charge Borrower's loan account for the amount of any item of
payment which is returned to Silicon unpaid.
9.2 APPLICATION OF PAYMENTS. All payments with respect to the
Obligations may be applied, and in Silicon's sole discretion reversed and
re-applied, to the Obligations, in such order and manner as Silicon shall
determine in its sole discretion.
9.3 CHARGES TO ACCOUNTS. Silicon may, in its discretion, require that
Borrower pay monetary Obligations in cash to Silicon, or charge them to
Borrower's Loan account, in which event they will bear interest at the same
rate applicable to the Loans. Silicon may also, in its discretion, charge any
monetary Obligations to Borrower's Deposit Accounts maintained with Silicon.
9.4 MONTHLY ACCOUNTINGS. Silicon shall provide Borrower monthly with an
account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Silicon), unless
Borrower notifies Silicon in writing to the contrary within thirty days after
each account is rendered, describing the nature of any alleged errors or
admissions.
9.5 NOTICES. All notices to be given under this Agreement shall be in
writing and shall be given either personally or by reputable private delivery
service or by regular first-class mail, or certified mail return receipt
requested, addressed to Silicon or Borrower at the addresses shown in the
heading to this Agreement, or at any other address designated in writing by
one party to the other party. Notices to Silicon shall be directed to the
Commercial Finance Division, to the attention of the Division Manager or the
Division Credit Manager. All notices shall be deemed to have been given upon
delivery in the case of notices personally delivered, or at the expiration of
one Business Day following delivery to the private delivery service, or two
Business Days following the deposit thereof in the United States mail, with
postage prepaid.
9.6 SEVERABILITY. Should any provision of this Agreement be held by any
court of competent jurisdiction to be void or unenforceable, such defect
shall not affect the remainder of this Agreement, which shall continue in
full force and effect.
9.7 INTEGRATION. This Agreement and such other written agreements,
documents and instruments as may be executed in connection herewith are the
final, entire and complete agreement between Borrower and Silicon and
supersede all prior and contemporaneous negotiations and oral representations
and agreements, all of which are merged and integrated in this Agreement.
THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR AGREEMENTS BETWEEN THE
PARTIES WHICH ARE NOT SET FORTH IN THIS AGREEMENT OR IN OTHER WRITTEN
AGREEMENTS SIGNED BY THE PARTIES IN CONNECTION HEREWITH.
9.8 WAIVERS. The failure of Silicon at any time or times to require
Borrower to strictly comply with any of the provisions of this Agreement or
any other present or future agreement between Borrower and Silicon shall not
waive or diminish any right of Silicon later to demand and receive strict
compliance therewith. Any waiver of any default shall not waive or affect any
other default, whether prior or subsequent, and whether or not similar. None
of the provisions of this Agreement or any other agreement now or in the
future executed by Borrower and delivered to Silicon shall be deemed to have
been waived by any act or knowledge of Silicon or its agents or employees,
but only by a specific written waiver signed by an authorized officer of
Silicon and delivered to Borrower. Borrower waives demand, protest, notice of
protest and notice of default or dishonor, notice of payment and nonpayment,
release, compromise, settlement, extension or renewal of any commercial
paper, instrument, account, General Intangible, document or guaranty at any
time held by Silicon on which Borrower is or may in any way be liable, and
notice of any action taken by Silicon, unless expressly required by this
Agreement.
9.9 NO LIABILITY FOR ORDINARY NEGLIGENCE. Neither Silicon, nor any of
its directors, officers, employees, agents, attorneys or any other Person
affiliated with or representing Silicon shall be liable for any claims,
demands, losses or damages, of any kind whatsoever, made, claimed, incurred
or suffered by Borrower or any other party through the ordinary negligence of
Silicon, or any of its directors, officers, employees, agents, attorneys or
any other Person affiliated with or representing Silicon, but nothing herein
shall relieve Silicon from liability for its own gross negligence or willful
misconduct.
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9.10 AMENDMENT. The terms and provisions of this Agreement may not be
waived or amended, except in a writing executed by Borrower and a duly
authorized officer of Silicon.
9.11 TIME OF ESSENCE. Time is of the essence in the performance by
Borrower of each and every obligation under this Agreement.
9.12 ATTORNEYS FEES AND COSTS. Borrower shall reimburse Silicon for all
reasonable attorneys' fees and all filing, recording, search, title
insurance, appraisal, audit, and other reasonable costs incurred by Silicon,
pursuant to, or in connection with, or relating to this Agreement (whether or
not a lawsuit is filed), including, but not limited to, any reasonable
attorneys' fees and costs Silicon incurs in order to do the following:
prepare and negotiate this Agreement and the documents relating to this
Agreement; obtain legal advice in connection with this Agreement or Borrower;
enforce, or seek to enforce, any of its rights; prosecute actions against, or
defend actions by, Account Debtors; commence, intervene in, or defend any
action or proceeding; initiate any complaint to be relieved of the automatic
stay in bankruptcy; file or prosecute any probate claim, bankruptcy claim,
third-party claim, or other claim; examine, audit, copy, and inspect any of
the Collateral or any of Borrower's books and records; protect, obtain
possession of, lease, dispose of, or otherwise enforce Silicon's security
interest in, the Collateral; and otherwise represent Silicon in any
litigation relating to Borrower. IN SATISFYING BORROWER'S OBLIGATION
HEREUNDER TO REIMBURSE SILICON FOR ATTORNEYS FEES, BORROWER MAY, FOR
CONVENIENCE, ISSUE CHECKS DIRECTLY TO SILICON'S ATTORNEYS, LEVY, SMALL &
LALLAS, BUT BORROWER ACKNOWLEDGES AND AGREES THAT LEVY, SMALL & LALLAS IS
REPRESENTING ONLY SILICON AND NOT BORROWER IN CONNECTION WITH THIS AGREEMENT.
If either Silicon or Borrower files any lawsuit against the other predicated
on a breach of this Agreement, the prevailing party in such action shall be
entitled to recover its reasonable costs and attorneys' fees, including (but
not limited to) reasonable attorneys' fees and costs incurred in the
enforcement of, execution upon or defense of any order, decree, award or
judgment. All attorneys' fees and costs to which Silicon may be entitled
pursuant to this Paragraph shall immediately become part of Borrower's
Obligations, shall be due on demand, and shall bear interest at a rate equal
to the highest interest rate applicable to any of the Obligations.
9.13 BENEFIT OF AGREEMENT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective successors, assigns,
heirs, beneficiaries and representatives of Borrower and Silicon; provided,
however, that Borrower may not assign or transfer any of its rights under
this Agreement without the prior written consent of Silicon, and any
prohibited assignment shall be void. No consent by Silicon to any assignment
shall release Borrower from its liability for the Obligations.
9.14 JOINT AND SEVERAL LIABILITY. If Borrower consists of more than one
Person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
9.15 LIMITATION OF ACTIONS. Any claim or cause of action by Borrower
against Silicon, its directors, officers, employees, agents, accountants or
attorneys, based upon, arising from, or relating to this Loan Agreement, or
any other present or future document or agreement, or any other transaction
contemplated hereby or thereby or relating hereto or thereto, or any other
matter, cause or thing whatsoever, occurred, done, omitted or suffered to be
done by Silicon, its directors, officers, employees, agents, accountants or
attorneys, shall be barred unless asserted by Borrower by the commencement of
an action or proceeding in a court of competent jurisdiction by the filing of
a complaint within one year after the first act, occurrence or omission upon
which such claim or cause of action, or any part thereof, is based, and the
service of a summons and complaint on an officer of Silicon, or on any other
person authorized to accept service on behalf of Silicon, within thirty (30)
days thereafter. Borrower agrees that such one-year period is a reasonable
and sufficient time for Borrower to investigate and act upon any such claim
or cause of action. The one-year period provided herein shall not be waived,
tolled, or extended except by the written consent of Silicon in its sole
discretion. This provision shall survive any termination of this Loan
Agreement or any other present or future agreement.
9.16 PARAGRAPH HEADINGS; CONSTRUCTION. Paragraph headings are only used
in this Agreement for convenience. Borrower and Silicon acknowledge that the
headings may not describe completely the subject matter of the applicable
paragraph, and the headings shall not be used in any manner to construe,
limit, define or interpret any term or provision of this Agreement. The term
"including", whenever used in this Agreement, shall mean "including (but not
limited to)". This Agreement has been fully reviewed and negotiated between
the parties and no uncertainty or ambiguity in any term or provision of this
Agreement shall be construed strictly against Silicon or Borrower under any
rule of construction or otherwise.
9.17 GOVERNING LAW; JURISDICTION; VENUE. This Agreement and all acts
and transactions hereunder and all rights and obligations of Silicon and
Borrower shall be governed by the laws of the State of California. As a
material part of the consideration to Silicon to enter into this Agreement,
Borrower (i) agrees that all actions and proceedings relating directly or
indirectly to this Agreement shall, at Silicon's option, be litigated in
courts located within California, and that the exclusive venue therefor shall
be Santa Clara County; (ii) consents to the jurisdiction and venue of any
such court and consents to service of process in any such action or
proceeding by personal delivery or any other method permitted by law; and
(iii) waives any and all rights Borrower may have to
-12-
object to the jurisdiction of any such court, or to transfer or change the
venue of any such action or proceeding.
9.18 MUTUAL WAIVER OF JURY TRIAL. BORROWER AND SILICON EACH HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER
PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND BORROWER, OR
ANY CONDUCT, ACTS OR OMISSIONS OF SILICON OR BORROWER OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS
AFFILIATED WITH SILICON OR BORROWER, IN ALL OF THE FOREGOING CASES, WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
BORROWER:
ADEXA, INC.
By /s/ [ILLEGIBLE]
------------------------------------
President or Vice President
By /s/ [ILLEGIBLE]
------------------------------------
Secretary or Ass't Secretary
SILICON:
SILICON VALLEY BANK
By /s/ [ILLEGIBLE]
------------------------------------
Title /s/ [ILLEGIBLE]
---------------------------------
Form 3/24/99
Version -0
-13-
SILICON VALLEY BANK
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: ADEXA, INC.
ADDRESS: 5933 W. CENTURY BLVD.
SUITE 1220
LOS ANGELES, CA 90045
DATE: AUGUST 22, 2000
This Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-borrower of even date.
================================================================================
1. CREDIT LIMIT
(Section 1.1): An amount not to exceed the lesser of:
(i) $5,000,000 at any one time outstanding
(the "Maximum Credit Limit"); or (ii) 70% of
the amount of Borrower's Eligible
Receivables (as defined in Section 8
above).*
*AFTER EACH AUDIT OF THE BORROWER'S BOOKS
AND RECORDS CONDUCTED IN ACCORDANCE WITH
SECTION 5.4 HEREOF, SILICON WILL REVIEW THE
AFOREMENTIONED ADVANCE RATE TO DETERMINE, IN
ITS SOLE DISCRETION, IF THE SAME SHOULD BE
ADJUSTED.
LETTER OF CREDIT SUBLIMIT
(Section 1.5): $75,000.
================================================================================
2. INTEREST.
INTEREST RATE (Section 1.2):
A rate equal to the "Prime Rate" in effect
from time to time, plus 1.5% per annum.
Interest shall be calculated on the basis of
a 360-day year for the actual number of days
elapsed. "Prime Rate" means the rate
announced from time to time by Silicon as
its "prime rate;" it is a base rate upon
which other rates charged by Silicon are
based, and it is not necessarily the best
rate available at Silicon. The interest rate
applicable to the Obligations shall change
on each date there is a change in the Prime
Rate.
-1-
================================================================================
Provided, however, after each instance in
which Borrower fails to comply with the
Profitability Financial Covenant set forth
herein, the applicable interest rate shall
be increased by an additional 0.50% per
annum. The then applicable interest rate
shall not later be reduced if Borrower
achieves compliance with the Profitability
Financial Covenant in any subsequent
reporting period.
MINIMUM MONTHLY
INTEREST (Section 1.2): Not Applicable.
================================================================================
3. FEES (Section 1.4):
Loan Fee: $25,000, payable concurrently herewith.
Collateral Monitoring
Fee: $950, per month, payable in arrears
(prorated for any partial month at the
beginning and at termination of this
Agreement).
Covenant Fee: Borrower shall pay Silicon a fee of
$6,250 each time Borrower fails to comply
with the Profitability Financial Covenant
set forth herein. Such fee shall be in
addition to all interest and all other fees
payable to Silicon and shall be
non-refundable.
================================================================================
4. MATURITY DATE
(Section 6.1): One year from the date of this Agreement.
================================================================================
5. FINANCIAL COVENANTS
(Section 5.1): Borrower shall comply with each of the
following covenant(s). Compliance shall be
determined as of the end of each fiscal
quarter, except as otherwise specifically
provided below:
PROFITABILITY: Borrower shall have a minimum net profit of
at least the following:
For the fiscal quarter ending June 30,
2000: < $1,188,000 >.
For the fiscal quarter ending September
30, 2000: < $844,000 >.
For the fiscal quarter ending December
31, 2000: < $454,000 >.
For the fiscal quarter ending March 31,
2001: < $149,000 >.
For the fiscal quarter ending June 30,
2001 and each fiscal quarter ending
thereafter: $19,000.
MINIMUM TANGIBLE
NET WORTH: Borrower shall maintain a Tangible Net Worth
of not less than < $8,000,000 >.
-2-
DEFINITIONS. For purposes of the foregoing financial
covenants, the following term shall have the
following meaning:
"< >" shall denote negative figures or
losses, as applicable.
"Current assets", "current liabilities" and
"liabilities" shall have the meaning
ascribed thereto by generally accepted
accounting principles.
"Tangible Net Worth" shall mean the excess
of total assets over total liabilities,
determined in accordance with generally
accepted accounting principles, with the
following adjustments:
(A) there shall be excluded from assets:
(i) notes, accounts receivable and other
obligations owing to the Borrower from its
officers or other Affiliates, and (ii) all
assets which would be classified as
intangible assets under generally accepted
accounting principles, including without
limitation goodwill, licenses, patents,
trademarks, trade names, copyrights,
capitalized software and organizational
costs, licenses and franchises
(B) there shall be excluded from
liabilities: all indebtedness which is
subordinated to the Obligations under a
subordination agreement in form specified
by Silicon or by language in the
instrument evidencing the indebtedness
which is acceptable to Silicon in its
discretion.
================================================================================
6. REPORTING.
(Section 5.3):
Borrower shall provide Silicon with the
following:
1. Monthly Receivable agings, aged by
invoice date, within fifteen days after
the end of each month.
2. Monthly accounts payable agings, aged by
invoice date, and outstanding or held
check registers, if any, within fifteen
days after the end of each month.
3. Monthly reconciliations of Receivable
agings (aged by invoice date),
transaction reports, and general ledger,
within fifteen days after the end of
each month.
4.
5.
-3-
6. *Compliance Certificates, within thirty
days after the end of each** , in such
form as Silicon shall reasonably
specify, signed by the Chief Financial
Officer of Borrower, certifying that as
of the end of such month Borrower was in
full compliance with all of the terms
and conditions of this Agreement, and
setting forth calculations showing
compliance with the financial covenants
set forth in this Agreement and such
other information as Silicon shall
reasonably request, including, without
limitation, a statement that at the end
of such** there were no held checks.
*QUARTERLY
**QUARTER
7. Quarterly unaudited financial
statements, as soon as available, and in
any event within thirty days after the
end of each fiscal quarter of Borrower.
8. Annual operating budgets (including
income statements, balance sheets and
cash flow statements, by month) for the
upcoming fiscal year of Borrower within
thirty days prior to the end of each
fiscal year of Borrower.
9. Annual financial statements, as soon as
available, and in any event within 120
days following the end of Borrower's
fiscal year, certified by independent
certified public accountants acceptable
to Silicon.
================================================================================
7. COMPENSATION
(Section 5.5): Without Silicon's prior written consent,
Borrower shall not pay total compensation,
including salaries, withdrawals, fees,
bonuses, commissions, drawing accounts and
other payments, whether directly or
indirectly, in money or otherwise, during
any fiscal year to all of Borrower's
executives, officers and directors (or any
relative thereof) as a group in excess of*
of the total amount thereof in the prior
fiscal year.
*200%
================================================================================
8. BORROWER INFORMATION:
PRIOR NAMES OF
BORROWER
(Section 3.2): Paragon Management Systems, Inc.
PRIOR TRADE
NAMES OF BORROWER
(Section 3.2): _________________
-4-
EXISTING TRADE
NAMES OF BORROWER
(Section 3.2): _________________
OTHER LOCATIONS AND
ADDRESSES (Section 3.3): _________________
MATERIAL ADVERSE
LITIGATION (Section 3.10): None.
================================================================================
9. OTHER COVENANTS
(Section 5.1): Borrower shall at all times comply with all
of the following additional covenants:
(1) BANKING RELATIONSHIP. Borrower shall at
all times maintain its primary banking
relationship with Silicon.
(2) SUBORDINATION OF INSIDE DEBT. All
present and future indebtedness of the
Borrower to its officers, directors and
shareholders ("Inside Debt") shall, at
all times, be subordinated to the
Obligations pursuant to a subordination
agreement on Silicon's standard form.
Borrower represents and warrants that
there is no Inside Debt presently
outstanding, except for the following:
NONE. Prior to incurring any Inside Debt
in the future, Borrower shall cause the
person to whom such Inside Debt will be
owed to execute and deliver to Silicon a
subordination agreement on Silicon's
standard form.
(3) COMPLIANCE WITH PROFITABILITY FINANCIAL
COVENANT. In the event Borrower receives
$13,000,000 cash consideration for the
issuance of new equity securities of
Borrower after the date hereof, Silicon
will waive Borrower's compliance with
the Profitability Financial Covenant
after Silicon's review and approval of
Borrower's financial statements showing
Borrower is entitled to such waiver of
compliance or after Silicon's review and
approval of such other evidence as is
acceptable to Silicon in its sole
discretion.
Borrower: Silicon:
ADEXA, INC. SILICON VALLEY BANK
By /s/ Stephanie Hamilton By /s/ Joseph L. L[ILLEGIBLE]
------------------------------- -------------------------------
President or Vice President Title SUP & MGR
----------------------------
By_______________________________
Secretary or Ass't Secretary
-5-
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: ADEXA, INC.
DATE: AUGUST 22, 2000
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"), with
reference to the various loan and security agreements and other documents,
instruments and agreements between them, including but not limited to that
certain Loan Agreement dated March 31, 1998 (as amended, if at all, the
"Existing Loan Agreement"; the Existing Loan Agreement and all related
documents, instruments and agreements may be referred to collectively herein
as the "Existing Loan Documents").
The Parties agree to amend the Existing Loan Dosuments, as follows:
1. PRESENT LOAN BALANCE. Borrower acknowledges that the present
unpaid principal balance of the Borrower's indebtedness, liabilities and
obligations to Silicon under the Existing Loan Documents, including interest
accrued through __________________________________ is $______________________
(the "Present Loan Balance"), and that said sum is due and owing without any
defense, offset, or counterclaim of any kind.
2. AMENDMENT TO EXISTING LOAN DOCUMENTS. The Existing Loan Documents
are hereby amended in their entirety to read as set forth in the Loan and
Security Agreement, and related documents, being executed concurrently
(collectively, the "New Loan Documents"). The Borrower acknowledges that the
Present Loan Balance shall be the opening balance of the Loans pursuant to
the New Loan Documents as of the date hereof, and shall, for all purposes, be
deemed to be Loans made by Silicon to the Borrower pursuant to the New Loan
Documents. Notwithstanding the execution of the New Loan Documents, the
following Existing Loan Documents shall continue in full force and effect and
shall continue to secure all present and future indebtedness, liabilities,
guarantees and other Obligations (as defined in the New Loan Documents): All
standard documents of Silicon entered into by the Borrower in connection
with Letters of Credit and/or Foreign Exchange Contracts; all security
agreements, collateral assignments and mortgages, including but not limited
to those relating to patents, trademarks, copyrights and other intellectual
property; all lockbox agreements and/or blocked account agreements; and all
UCC-1 financing statements and other documents filed with governmental
offices which perfect liens or security interests in favor of Silicon. In
addition, in the event the Borrower has previously issued any stock options,
stock purchase warrants or securities to Silicon, the same and all documents
and agreements relating thereto shall also continue in full force and effect.
-1-
3. GENERAL PROVISIONS. This Amendment and the New Loan Documents set
forth in full all of the representations and agreements of the parties with
respect to the subject matter.
-2-
hereof and supersede all prior discussions, representations, agreements and
understandings between the parties with respect to the subject hereof.
BORROWER: SILICON:
ADEXA, INC. SILICON VALLEY BANK
BY /s/ [ILLEGIBLE] BY /s/ [ILLEGIBLE]
----------------------------- ----------------------------
President or Vice President TITLE: SVP & [ILLEGIBLE]
-------------------------
BY /s/ [ILLEGIBLE]
-----------------------------
Secretary or Ass't Secretary
-3-
- -------------------------------------------------------------------------------
NOTES:
1. This is an "on-line" form designed to be filled out on your computer in
Microsoft Word 97.
2. Tab to move from field to field. Shift-Tab to move back to a prior field.
3. If there is not enough space for your answer, please use the Continuation
Sheet at the end of this form or attach a separate Word document with the
additional information.
4. Please submit this by e-mail or on a Disk to Silicon Valley Bank. Please
also print this form and submit a hard copy signed by an officer of the
Company.
- -------------------------------------------------------------------------------
REPRESENTATIONS AND WARRANTIES
TO: SILICON VALLEY BANK
COMMERCIAL FINANCE DIVISION
3003 TASMAN DRIVE
MAIL SORT NC491
SANTA CLARA, CALIFORNIA 95054
The undersigned, ADEXA, INC., a CA corporation (the "Company") hereby
represents and warrants to you that the following information is true,
accurate and complete. (The Company acknowledges that your acceptance of
these Representations and Warranties does not imply any commitment on your
part to enter into a loan transaction with the Company, and that any such
commitment may only be made by an express written loan commitment, signed by
one of your authorized officers.)
1. NAMES OF THE COMPANY
a. The exact corporate name of the Company as it appears in its
current Articles or Certificate of Incorporation is as follows: ADEXA, INC.
b. The federal employer identification number of the Company is
as follows: 33-0616222
c. The Company was incorporated on MAY 9, 1994 under the laws of
the State of CA and is in good standing under those laws.
d. The following is a list of all other names (including
fictitious names, d/b/a's, trade names or similar names) currently used by
the Company or used within the past six years:
NAME PERIOD OF USE
- -------------------------------------------------------------------------------
PARAGON MANAGEMENT SYSTEMS 1994-2000
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
1
e. The following are the names of all corporations which have
been merged into the Company during the past six years:
NAME OF MERGED COMPANY YEAR OF MERGER
- -------------------------------------------------------------------------------
N/A
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
f. The following are the names and addresses of all entities from
whom the Company has acquired any personal property in a transaction not in
the ordinary course of business during the past six years, together with the
date of such acquisition and the type of personal property acquired (e.g.,
equipment, inventory, etc.):
NAME STREET AND MAILING ADDRESS DATE OF ACQUISITION TYPE OF PROPERTY
- -------------------------------------------------------------------------------
N/A
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
2. NAMES OF SUBSIDIARIES/PARENT OF THE COMPANY.
a. The exact corporate name of each subsidiary and parent of the
Company is as follows. (A "parent" is a company owning more than 50% of the
outstanding capital stock of the Company.)
NAME SUBSIDIARY/PARENT FED. EMPLOYER ID NO.
- -------------------------------------------------------------------------------
ADEXA JAPAN Sub /x/ Parent / / N/A
- -------------------------------------------------------------------------------
ADEXA CANADA Sub /x/ Parent / / N/A
- -------------------------------------------------------------------------------
ADEXA GERMANY Sub /x/ Parent / / N/A
ADEXA SINGAPORE Sub /x/ Parent / / N/A
ADEXA MAURITIUS Sub /x/ Parent / / N/A
- -------------------------------------------------------------------------------
b. The following is a list of the jurisdiction and date of
incorporation of each subsidiary of the Company:
NAME JURISDICTION DATE OF INCORPORATION
- -------------------------------------------------------------------------------
ADEXA JAPAN JAPAN 1997
ADEXA CANADA CANADA 1997
- -------------------------------------------------------------------------------
ADEXA GERMANY GERMANY 2000
- -------------------------------------------------------------------------------
ADEXA SINGAPORE SINGAPORE 1999
- -------------------------------------------------------------------------------
2
ADEXA MAURITIUS MAURITIUS 1999
- --------------- --------- ----
c. The following is a list of all other names (including fictitious
names, d/b/a's, trade names or similar names) used by each subsidiary of the
Company during the past six years:
NAME SUBSIDIARY
- ---- ----------
PARAGON MANAGEMENT SYSTEMS ______
_____ ______
_____ ______
d. The following are the names of all corporations which have been
merged into a subsidiary of the Company during the six years:
NAME SUBSIDIARY
- ---- ----------
N/A _____
_____ _____
_____ _____
e. The following are the names and addresses of all entities from
whom each subsidiary of the Company has acquired any personal property in a
transaction not in the ordinary course of business during the past six years,
together with the date of such acquisition and the type of personal property
acquired (e.g., equipment, inventory, etc.):
DATE OF TYPE OF
NAME MAILING ADDRESS ACQUISITION PROPERTY SUBSIDIARY
- ---- --------------- ----------- -------- ----------
N/A _____ _____ _____ ______
_____ _____ _____ _____ ______
_____ _____ _____ _____ ______
3. LOCATIONS OF COMPANY AND ITS SUBSIDIARIES.
a. The chief executive offices of the Company and its subsidiaries
are presently located at the following addresses:
COMPLETE STREET AND MAILING ADDRESS, INCLUDING COUNTY AND ZIP CODE COMPANY/SUBSIDIARY
- ------------------------------------------------------------------ ------------------
5933 WEST CENTURY BLVD, SUITE 1220 LOS ANGELES, CA 90045 Company /X/ OR
Name of Sub
3-6 HAYABUSA-CHO, CHIYODA-KU, TOKYO 102-0092 JAPAN Company / / OR
Name of Sub Japan
20 ADELAIDE STREET EAST, SUITE 800 Company / / OR
TORONTO, ONTARIO, MSC 2T6 Name of Sub Canada
CANADA
3
LILIENTHALSTR. 29 Company / / OR
D-85399 HALLBERGMOOS/MUNICH Name of Sub Germany
GERMANY
30 CECIL STREET, LEVEL 15, PRUDENTIAL TOWER
049712 Singapore
SINGAPORE
HAPPY WORLD HOUSE, SIR WILLIAM NEWTON STREET, PORT LOUIS, REPUBLIC OF Mauritius
MAURITIUS
b. During the past six years, the Company's chief executive office and
the chief executive offices of its subsidiaries have been located at the
following additional addresses:
COMPLETE STREET AND MAILING ADDRESS, INCLUDING COUNTY AND ZIP CODE COMPANY/SUBSIDIARY
- ------------------------------------------------------------------ ------------------
- -------------------------------------------------------------------------------------------------------
5933 WEST CENTURY BLVD. SUITE 1220 LOS ANGELES, CA. 90045 Company /X/ OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
_____ Company / / OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
_____ Company / / OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
_____ Company / / OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
c. The following are all the locations in the United States where the
Company and its subsidiaries maintain any books or records relating to any of
their accounts receivable;
COMPLETE STREET AND MAILING ADDRESS, INCLUDING COUNTY AND ZIP CODE COMPANY/SUBSIDIARY
- ------------------------------------------------------------------ ------------------
- -------------------------------------------------------------------------------------------------------
5933 WEST CENTURY BLVD. SUITE 1220 LOS ANGELES, CA. 90045 Company /X/ OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
_____ Company / / OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
_____ Company / / OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
_____ Company / / OR
Name of Sub
- -------------------------------------------------------------------------------------------------------
4
d. The following are alll of the locations in the United
States where the Company and its subsidiaries maintain any equipment, fixutres,
inventory or other property:
COMPLETE STREET AND MAILING ADDRESS, INCLUDING COUNTY AND ZIP CODE COMPANY/SUBSIDIARY
9533 WEST CENTURY BLVD, SUITE 1220 LOS ANGELES, CA. Company /x/OR Name of Sub
Name of Sub
10 WRIGHT ST. SUITE 110 WESTPORT, CT 06880 Company /x/OR Name of Sub
Name of Sub
5010 INTERNATIONAL DRIVE, SUITE 300 MOUNT OLIVE, NJ 07828 Company /x/OR Name of Sub
Name of Sub
800 HINGHAM STREET, SUITE 200N ROCKLAND, MA 02370 Company /x/OR Name of Sub
Name of Sub
c. The following are all the location in the United States
where the Company and its subsidiaries own, lease, or occupy any real property:
COMPLETE STREET AND MAILING ADDRESS, INCLUDING COUNTY AND ZIP CODE COMPANY/SUBSIDIARY
5933 WEST CENTURY BLVD. SUITE 1220 LOS ANGELES, CA. Company /x/OR Name of Sub
Name of Sub
1080 HOLCOMB BRIDGE ROAD BUILDING 100, SUITE 135 ROSWELL, GA. 30076 Company /x/OR Name of Sub
Name of Sub
10 WRIGHT ST. SUITE 110 WESTPORT, CT 06880 Company /x/OR Name of Sub
Name of Sub
500 INTERNATIONAL DRIVE, SUITE 300 MOUNT OLIVE, NJ 07828 Company /x/OR Name of Sub
Name of Sub
800 HINGHAM STREET, SUITE 200N ROCKLAND, MA 02370 Company /x/OR Name of Sub
Name of Sub
f. The following are the names and addresses of all
warehousemen or bailees who have peossession of any of the Company's inventroy
or any of the inventory of its subsidiaries:
COMPANY/SUBSIDIARY
NAME COMPLETE STREET AND MAILING ADDRESS, INCLUDING COUNTY AND ZIP Company / /OR Name of Sub
CODE Name of Sub
-- -- Company / /OR Name of Sub
Name of Sub
-- -- Company / /OR Name of Sub
Name of Sub
-- -- Company / /OR Name of Sub
Name of Sub
5
NAME OF SUB
4. SPECIAL TYPES OF COLLATERAL
a. The Company and its subsidiaries own the following kinds of
assets. (If the answer is "Yes" to any of the following questions, attach a
schedule describing each such asset owned by the Company or its subsidiaries
and identifying which party owns the asset.)
- ---------------------------------------------------------------------------------------------------------
Copyrights or copyright applications registered with the U.S. Copyright Office Yes /X/ No / /
- ---------------------------------------------------------------------------------------------------------
Software registered with the U.S. Copyright Office Yes /X/ No / /
- ---------------------------------------------------------------------------------------------------------
Software NOT registered with the U.S. Copyright Office Yes /X/ No / /
- ---------------------------------------------------------------------------------------------------------
Patents and patent applications Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Trademarks or trademark applications (including any service marks, collective
marks and certification marks) Yes /X/ No / /
- ---------------------------------------------------------------------------------------------------------
Licenses to use trademarks, patents and copyrights of others Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Franchise, marketing agreements or similar agreements: Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Stocks, Bonds or other securities: Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Promissory notes, or other instruments or evidence of indebtedness: Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Leases of equipment, security agreements naming such person as secured party,
or other chattel paper: Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Aircraft: Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Vessels, Boats or Ships: Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Railroad Rolling Stock Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
Motor Vehicles Yes / / No /X/
- ---------------------------------------------------------------------------------------------------------
b. The following are all governmental permits and licenses held by
the Company and its subsidiaries:
DESCRIPTION OF LICENSE COMPANY/SUBSIDIARY
- ---------------------- ------------------
- --------------------------------------------------------------------------------------
- ----- Company / / OR
Name of Sub
- --------------------------------------------------------------------------------------
- ----- Company / / OR
Name of Sub
- --------------------------------------------------------------------------------------
- ----- Company / / OR
Name of Sub
- --------------------------------------------------------------------------------------
- ----- Company / / OR
Name of Sub
- --------------------------------------------------------------------------------------
- ----- Company / / OR
Name of Sub
- --------------------------------------------------------------------------------------
6
c. The following are all banks or savings institutions at which the
Company and its subsidiaries maintain deposit accounts:
- -------------------------------------------------------------------------------------------------
Bank Name Account Number Branch Address Company/Subsidiary
- -------------------------------------------------------------------------------------------------
WELLS FARGO BANK 6714-233897 PO BOX 5190 SIOUX FALLS, Company /X/ OR
0744-097007 SD 57117 Name of Sub
- -------------------------------------------------------------------------------------------------
SILICON VALLEY BANK 3300154227 PO BOX 2607 Company /X/ OR
3300116272 SANTA CLARA, CA. 95055 Name of Sub
3300111299
- -------------------------------------------------------------------------------------------------
DKB KOJIMACHI 1704978 2 KOJIMACHI 3-CHOME Company / / OR
1707047 CHIYODA TOKYO 102- Name of Sub Japan
9102748 0083 JAPAN
- -------------------------------------------------------------------------------------------------
KORAM BANK 101-51472-248 SEO-YOIDO BRANCH Company /X/ OR
1 FL., ILSHIN BLDG., Name of Branch Korea
#15-15 YOIDO-DONG
YOUNGDUNGPO-KU,
SEOUL, KOREA
- -------------------------------------------------------------------------------------------------
THE FIRST COMMERCIAL 16210043884 NO. 168, 2nd SEC HSIN YI Company /X/ OR
BANK 033-001- RD. TAIPIA, TAIWAN Name of Branch Taiwan
0000102-6 R.O.C.
KONTOUMSATZE 815621 SPARKASSE HALLBERMOOS Germany
203117 THERESIENSTRASSE 29
85399 HALLBERMOOS/
GERMANY
DBS BANK 022-02236-1 6 SHENTON WAY, DBS Singapore
5356577 BUILDING SINGAPORE
068809
HSBC MU MOBU ENTERPRISE SOLUTION FTE Mauritius
080-042658 LTD OVERSEAS CO.
REGISTRATION AG M LTD
7th FLOOR HAPPY WORLD
HOUSE SIR WILLIAM
- -------------------------------------------------------------------------------------------------
7
NEWTON ST. PORT LOUIS
#MU MOBU 080-
042658
Toronto
915 KINGSTON RD.
CIBC 72-02911 TORONTO, ONTARIO M4E
1S4 CANADA
5. OFFICERS OF THE COMPANY AND ITS SUBSIDIARIES
The following are the names and titles of the officers of the Company and
its Subsidiaries.
Officer/Title Name of Officer Company/Subsidiary
- ------------- --------------- ------------------
- ---------------------------------------------------------------------------------
CEO DR. CYRUS HADAVI Company /X/ OR
Name of Sub all subs
- ---------------------------------------------------------------------------------
CFO TIM ROMER Company /X/ OR
Name of Sub all subs
- ---------------------------------------------------------------------------------
COO HOON CHUNG Company /X/ OR
Name of Sub all subs
- ---------------------------------------------------------------------------------
CTO UDO DENGLER Company /X/ OR
Name of Sub
- ---------------------------------------------------------------------------------
_____ _____ Company / / OR
Name of Sub
- ---------------------------------------------------------------------------------
_____ _____ Company / / OR
Name of Sub
- ---------------------------------------------------------------------------------
6. LEGAL COUNSEL
The following firm will represent the Company in connection with the loan
documents:
ATTORNEY LAW FIRM TELEPHONE FAX EMAIL
- -------- -------- --------- --- -----
Monte M. Lemann Manatt, Phelps, 310-312-4000 310-312-4224 mlemann@manatt.co
II Philips, LLP m
8
The undersigned undertakes to advise you of any change or modification
to any of the foregoing information. Until such notice is received by you,
you shall be entitled to rely upon all of the foregoing and presume it is
correct and accurate in all respects.
DATE: 8-22-00 ADEXA, INC.
By: /s/ [ILLEGIBLE]
-------------------------------
Its: VP
---------------------------
Email:
9
CONTINUATION PAGE--ADDITIONAL INFORMATION
The following are exceptions to the representations and warranties set forth
in the Loan and Security Agreement of Adexa, Inc. (the "Company" or "Adexa"),
dated August 22, 2000 (the "Agreement"), and should be considered an
integral part of the Agreement. Any terms defined in the Agreement shall have
the same meaning when used in this Schedule as when used in the Agreement,
unless the context indicates otherwise. The paragraph numbers of this
Schedule correspond to the first, or principal, section of the Agreement to
which the disclosures relate; however, all information disclosed herein shall
be deemed disclosed under and incorporated into any other section of the
Agreement where such disclosure would be appropriate.
3.4 TITLE TO COLLATERAL; PERMITTED LIENS.
- The Company has not performed any copyright, patent or other searches
to verify it has sufficient title and ownership of its Intellectual
Property, nor has it conducted such scarches in order to determine
whether any of its Intellectual Property infringes any rights of any
third party.
3.8 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS
- From its inception, the Company had filed an election to be taxed as
an S-corporation under the Code. The Company no longer qualified for
S-corporation status upon consummation of its Series A Preferred Stock
financing on August 4, 1997. The Company filed its 1997 tax return
indicating that the S-corporation election was abandoned as of such
date and files future tax returns as a C-corporation.
- The Company has not paid sales tax on any sales of products within
the United States based on electronic rather than physical delivery
of its software. Such U.S. purchasers have agreed to reimburse the
Company with respect to any state tax liability assessed. The Company
has also established a reverse for potential sales tax liability.
- The Company did not timely file its 1998 federal and state tax
returns. Penalties are currently estimated to be no more than $10,000.
- The Company is being audited by the City of Los Angeles for tax years
1998, 1999 and 2000 based on gross receipts in calendar years 1997,
1998 and 1999, respectively.
- The Company has established a reserve for various withholding taxes
that it believes may be imposed upon license and consulting revenues
in Taiwan and other jurisdictions. The Company has retained D & T to
develop a global tax minimization strategy.
3.10 LITIGATION
- The Company received a letter from the Law Offices of Dean, Smith &
Therrell, P.A. on behalf of C. Ernest Johnson, a former employee of the
Company, dated February 25, 2000, alleging various claims for wrongful
employment termination and failure to pay commissions. On March 23,
2000 Mr. Johnson filed a Charge of Discrimination with the Equal
Employment Opportunity Commission ("EEOC") against the Company,
alleging discrimination on the basis of age. On April 25, 2000 the
Company filed its position statement, denying the allegations, and on
June 28, 2000 the EEOC issued a "no finding" determination and issued a
right-to-sue letter; Mr. Johnson has until September 26, 2000 to file a
lawsuit in this matter. The Company is not aware of any lawsuit filed
by Mr. Johnson.
- Brad Forsythe's employment with the Company was terminated on February
14, 2000. Mr. Forsythe sued the Company in Connecticut alleging that he
is entitled to unpaid commissions earned prior to the termination of his
employment and that his stock options should have been vesting on a
monthly basis following the one year anniversary of his vesting
commencement date. The suit was brought in state court and removed to
federal court. The Company maintains it has a consistent policy that
commissions are earned upon cash receipt and revenue recognitiion by
the Company and therefore no commissions were owing to Mr. Forsythe upon
his termination of employment. Since Mr. Forsythe signed option
documentation clearly stating that his stock options vested in annual
installments, the Company intends to vigorously defend against any claims
by Mr. Forsythe that his options should have been vesting on a montly
basis. The two parties have agreed to enter arbitration negotiations
scheduled for September, 2000.
10
- In June 2000, Craig Wibby, a former employee of the Company, threatened
to sue the Company alleging he was owed commissions. The amount of
the claim is undetermined but is less than $25,000.
- The Company and former employee, Gary Brayton, have reached a verbal,
non-binding agreement regarding a monetary settlement to resolve
Mr. Brayton's allegations that the Company was contractually
obligated to provide him additional stock option vesting following
the termination of his employment. The dispute involves an option
to purchase 12,500 shares of Common Stock and the verbal agreement
will involve a payment by the Company of $45,000.
- Dr. K. Cyrus Hadavi, President and Chief Executive Officer of the
Company, has received letters from i2 Technologies Inc. ("i2")
(previously known as Intellection) or its legal counsel dated March
3, 1994, March 16, 1994, July 3, 1995, and February 4, 1997,
claiming that Dr. Hadavi, a former employee of i2, improperly
solicited clients of i2, misused trade secrets and confidential
information of i2 obtained during his employment with i2 and
slandered and disparaged i2 and its products. The Company believes
such claims are without merit.
- On July 14, 2000, Company received a letter from Andre Reverdin of the
law firm of Katzarov S.A. on behalf of his clients Logitech S.A.
and Logitech International S.A. Switzerland (together "Logitech").
In his letter, Mr. Reverdin claimed that Company's trademark "Adexa"
was confusingly similar to Logitech's trademark "Dexxa" which is
registered in at least Germany, Spain and France (the letter does
not explain the exact countries in which such mark is registered).
Company believes that Logitech's claims are without merit and has
retained counsel to respond to Mr. Reverdin's letter.
5.5 NEGATIVE COVENANTS
- The Company has loaned $300,000 to Udo Dengler, the Company's
Chief Technology Officer, at a 5% semi-annual interest rate
pursuant to a promissory note due in 2008. In addition, in a letter
dated March 3, 1999, the Company promised Mr. Dengler a total
bonus payment of $145,000 upon the exercise of his vested options
in exchange for increasing his option exercise price to $0.15
per share. Such bonus has been accrued.
- The Company loaned $200,000 to K. Cyrus Hadavi, the Company's CEO
and a director of the Company, pursuant to a Loan, Pledge and
Option Agreement dated July 31, 1997.
- The Company loaned $55,000 to Hoon Chung, currently the Company's
Chief Operating Officer, pursuant to a promissory note in
December 1997.
TYPES OF COLLATERAL CHECKLIST
FOLLOWING IS A LIST AND DESCRIPTION OF OUR SOFTWARE PRODUCTS.
iCOLLABORATION COMPONENTS
Our iCollaboration suite consists of the following components, which
may be deployed and configured in various ways:
- -------------------------------------------------------------------------------
iCOLLABORATION DESCRIPTION
COMPONENTS
- -------------------------------------------------------------------------------
Supply Chain Planner iCollaboration's Supply Chain Planner is a
constraint-based planning application that enables
organizations to coordinate and synchronize global
supply chain activities, including procurement,
production and distribution. Supply Chain Planner
uses a detailed, supply chain model that accounts for
multiple production and distribution sites,
transportation networks and supplier and customer
connections to model enterprise-wide material and
capacity constraints.
- -------------------------------------------------------------------------------
Available-to-Promise iCollaboration's Available-to-Promise, or ATP,
enables companies and electronic exchanges to
provide their customers with real-time
available-to-promise and capable-to-promise
information. ATP simultaneously considers a
variety of constraints provided by Supply
Chain Planner, including current and
projected inventory positions, production and
distribution capacity, appropriate
substitution and configuration alternatives
and the priorities of competing commitments.
- -------------------------------------------------------------------------------
11
- ----------------------------------------------------------------------------------------------------------------------------
Planet Planner iCollaboration's Plant Planner is a constraint-based planning application designed to optimize
plant-level operations while respecting strategic business constraints, such as customer priority.
Plant Planner uses configurable business rules to model complex production processes and advanced
planning algorithms to quickly process and route large numbers of jobs. Plant Planer improves both
the reliability and feasibility of production plans by balancing material and capacity constraints
with supplier constraints and customer preferences as they change.
- ----------------------------------------------------------------------------------------------------------------------------
Strategic Planner iCollaborations's Strategic Planner is a scenario-based, long-horizon planning and optimization
application that enables companies to design their supply chain and business processes to achieve
strategic business objectives, improve customer service levels and more accurately predict the
impact of supply chain decisions on short-and long-term financial performance.
- ----------------------------------------------------------------------------------------------------------------------------
Collaborative Demand iCollaboration's Collaborative Demand Planner enables multiple users within and outside the
Planner enterprise to collaboratively plan for future demand. Designed for enterprises in demand-volatile
industries where historical information cannot accurately predict future demand, Collaborative
Demand Planner enables users to securely view, analyze and publish changes to forecasted demand.
Collaborative Demand Planner allows enterprises to quickly reach a consensus forecast based on the
input of a wide range of users.
- ----------------------------------------------------------------------------------------------------------------------------
Collaborative Supply iCollaboration's Collaborative Supply Planner will complement Collaborative Demand Planner by
Planner enabling enterprises to provide their suppliers with visibility into forecasted demand over the
Internet. Collaborative Supply Planner will enable enterprises to collaborate with their suppliers
on component-level demand from Supply Chain Planner.
- ----------------------------------------------------------------------------------------------------------------------------
Product Development iCollaboration's Product Development Planner is designed to enable enterprises to optimize
Planner their product development processes by intelligently allocating design resources, synchronizing
multiple development projects and scheduling sequence-dependent activities. Product Development
Planner uses a constraint-based planning engine to generate product development plans that are
based on the enterprise's constraints.
- ----------------------------------------------------------------------------------------------------------------------------
Shop Floor Sequencer iCollaboration's Shop Floor Sequencer translates work orders into detailed execution instructions
for shop floor systems and sequences jobs across multiple plant resources to efficiently meet
production requirements. Shop Floor Sequencer functions as an intelligent buffer between the
production plan and shop floor systems and can reduce the impact of unexpected events--such as
machine outages or inventory shortfalls--by automatically re-sequencing production events.
- ----------------------------------------------------------------------------------------------------------------------------
Business Agents - ICOLLABORATION'S ATP AGENT is embedded in external applications, such as an order entry system,
and works with our Available to Promise application to provide customers with real-time order
promising information.
- ICOLLABORATION'S BUSINESS ALERT AGENT is an exception-based messaging system that monitors supply
chain activities and sends alerts when user-defined thresholds are exceeded.
- ICOLLABORATION'S CUSTOMER AGENT monitors order status and notifies customers when user-defined
thresholds are exceeded.
- ICOLLABORATION'S SUPPLIER AGENT monitors the status of ordered components and provides users with
immediate access to material requirement information when new production plans are created.
- ----------------------------------------------------------------------------------------------------------------------------
Unified Data Server iCollaboration's Unified Data Server provides persistent data storage for all iCollaboration modules
via a relational database. Unified Data Server manages the data required for distributed supply
chain planning by enabling data.
- ----------------------------------------------------------------------------------------------------------------------------
12
- ----------------------------------------------------------------------------------------------------------------------------
communication between multiple Unified Data Server instances and supporting multiple supply
chain models.
- ----------------------------------------------------------------------------------------------------------------------------
Supply Chain iCollaboration's Supply Chain Controller is the workflow and integration module for the
Controller iCollaboration suite. Supply Chain Controller consists of a graphical workflow modeling tool,
application programming interfaces and certified connectors to external data sources and
applications.
- ----------------------------------------------------------------------------------------------------------------------------
13
SILICON VALLEY BANK
CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
BORROWER: ADEXA, INC.,
A CORPORATION ORGANIZED UNDER THE LAWS OF
THE STATE OF CALIFORNIA
DATE: AUGUST 22, 2000
I, the undersigned, Secretary or Assistant Secretary of the above-named
borrower, a corporation organized under the laws of the state set forth above,
do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and that
said resolutions are still in full force and effect and have not been in any way
modified, repealed, rescinded, amended or revoked.
RESOLVED, that this corporation* borrow from Silicon Valley Bank
("Silicon"), from time to time, such sum or sums of money as, in the
judgment of the officer or officers hereinafter authorized hereby, this
corporation may require**.
*MAY
**UP TO TEN MILLION ($10,000,000) PRINCIPAL AMOUNT
RESOLVED FURTHER, that any officer of this corporation be, and he or she is
hereby authorized, directed and empowered, in the name of this corporation,
to execute and deliver to Silicon, and Silicon is requested to accept, the
loan agreements, security agreements, notes, financing statements, and other
documents and instruments providing for such loans and evidencing and/or
securing such loans, with interest thereon, and said authorized officers are
authorized from time to time to execute renewals, extensions and/or
amendments of said loan agreements, security agreements, and other documents
and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all indebtedness
of this corporation to Silicon, whether arising pursuant to this resolution
or otherwise, to grant, transfer, pledge, mortgage, assign, or otherwise
hypothecate to Silicon, any property of any and every kind, belonging to
this corporation, including, but not limited to, any and all accounts,
inventory, equipment, general intangibles, instruments, documents, chattel
paper, notes, money, deposit accounts, furniture, fixtures, goods, and other
property of every kind, and to execute and deliver to Silicon any and all
grants, transfers, trust receipts, loan or credit agreements, pledge
agreements, mortgages, financing statements, security agreements and other
hypothecation agreements, which said instruments and the note or notes and
other instruments referred to in the preceding paragraph may contain such
provisions, covenants, recitals and agreements as Silicon may require and
said authorized officers may approve, and the execution thereof by said
authorized officers shall be conclusive evidence of such approval.
RESOLVED FURTHER, that Silicon may conclusively rely upon a certified copy
of these resolutions and a certificate of the Secretary or* Secretary of
this corporation as to the officers of this corporation and their offices
and signatures, and continue to conclusively rely on such certified copy of
these resolutions and said certificate for all past, present and future
transactions until written notice of any change hereto or thereto is given
to Silicon by this corporation by certified mail, return receipt requested.
*ASSISTANT
-1-
The undersigned further hereby certifies that the following persons are the
duly elected and acting officers of the corporation named above as borrower and
that the following are their actual signatures:
NAMES OFFICE(S) ACTUAL SIGNATURES
Stephanie Hamilton CAO, VP /s/ Stephanie Hamilton
------------------------------ --------------------------------- X---------------------------
------------------------------ --------------------------------- X---------------------------
------------------------------ --------------------------------- X---------------------------
------------------------------ --------------------------------- X---------------------------
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
/s/ Stephanie Hamilton
-------------------------------------------
Secretary or Assistant Secretary
-------------------
-2-
THIS SPACE FOR USE OF FILING OFFICE
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5
years from date of filing.
- --------------------------------------------------------------------------------------------------------
A. NAME & TEL. # OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT. # (optional)
- --------------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
LEXIS DOCUMENT SERVICES INC.
PO BOX 2969
SPRINGFIELD, IL 62708
- --------------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION (if applicable): / / LESSOR/LESSEE / / CONSIGNOR/CONSIGNEE / / NON-UCC FILING
- -----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b)
-------------------------------------------------------------------------------------------------------------------------------
1a. ENTITY'S NAME
ADEXA, INC.
OR -------------------------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
5933 WEST CENTURY BLVD. #1220 LOS ANGELES CA USA 90045
- -----------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL 1e. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D.#, if any
ADD'NL INFO RE OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION / / NONE
- -----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
-------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR -------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
- -----------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D.#, if any
ADD'NL INFO RE OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION / / NONE
- -----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P or IT'S TOTAL ASSIGNEE) EXACT FULL LEGAL NAME - insert only secured party name (3a or 3b)
-------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
SILICON VALLEY BANK
OR -------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
3003 TASMAN DRIVE, MAIL SORT NC-661 SANTA CLARA CA USA 95054
- -----------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
Debtor hereby grants Secured Party a security interest in all of the following, whether now owned or hereafter acquired, and
wherever located, as collateral for the payment and performance of all present and future indebtedness, liabilities,
guarantees and obligations of Debtor to Secured Party: All "accounts," "general intangibles," "chattel paper," "documents,"
"letters of credit," "instruments," "deposit accounts," "inventory," "farm products," " fixtures," "equipment," "investment
property," "securities," "financial assets," "securities accounts," and "security settlements" as such terms are defined in
the California Uniform Commercial Code in effect on the date hereof, and all other types or items of property described on
Exhibit A hereto (but this Financing Statement shall be fully effective notwithstanding any lack of any Exhibit A). Debtor is
not authorized to sell, transfer, or further encumber any of the foregoing collateral, except for the sale of finished
inventory in the ordinary course of business.
CA-S0S
- -----------------------------------------------------------------------------------------------------------------------------------
5. CHECK / / This FINANCING STATEMENT is signed by the Secured Party instead of 7. If filed in Florida (check one)
BOX the Debtor to perfect a security interest (a) in collateral already / / Documentary / / Documentary
(if applicable) subject to a security interest in another jurisdiction when it was stamp tax stamp
brought into this state, or when the debtor's location was changed paid tax not
to this state, or (b) in accordance with other statutory provisions applicable
(additional data may be required)
- -----------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SIGNATURE(S) 8. / / This FINANCING STATEMENT is to be filed
(for record) (or recorded) in the REAL
ESTATE RECORDS
ADEXA, INC. /s/ [ILLEGIBLE], CFO Attach Addendum (if applicable)
- -----------------------------------------------------------------------------------------------------------------------------------
9. Check to REQUEST SEARCH CERTIFICATE(S) on
Debtor(s) (ADDITIONAL FEE)
(optional) / / All Debtors / /Debtor 1
/ / Debtor 2
- -----------------------------------------------------------------------------------------------------------------------------------
[LOGO]
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following
types or items of property (in addition to, and without limiting the types of
property set forth on page 1 hereof):
All "Inventory", "Equipment", "Receivables", and "General Intangibles",
including, without limitation, all of Debtor's "Deposit Accounts" (as the
foregoing terms are defined below), and all money, and all property now or at
any time in the future in Secured Party's possession (including claims and
credit balances), and all proceeds of the foregoing (including proceeds of
any insurance policies, proceeds of proceeds and claims against third
parties), all products of any of the foregoing, and all books and records
related to any of the foregoing.
As used in this Exhibit A the following terms have the following
meanings:
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California at the date hereof.
"Deposit Account" has the meaning set forth in Section 9105 of the Code.
"Equipment" means all of Debtor's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Debtor's operations or owned by Debtor and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the
foregoing, wherever located.
"General Intangibles" means all general intangibles of Debtor, whether
now owned or hereafter created or acquired by Debtor, including, without
limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, security and
other deposits, rights in all litigation presently or hereafter pending for
any cause or claim (whether in contract, tort or otherwise), and all
judgments now or hereafter arising therefrom, all claims of Debtor against
Secured Party, rights to purchase or sell real or personal property, rights
as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and
claims (including without limitation life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims
under guaranties, security interests or other security held by or granted to
Debtor, all rights to indemnification and all other intangible property of
every kind and nature.
"Inventory" means all of Debtor's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Debtor's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"Receivables" means all of Debtor's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Debtor, all guaranties and other security therefor, all merchandise
returned to or repossessed by Debtor, and all rights of stoppage in transit
and all other rights or remedies of an unpaid vendor, lienor or secured party.
THIS SPACE FOR USE OF FILING OFFICE
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5
years from date of filing.
- --------------------------------------------------------------------------------------------------------
A. NAME & TEL. # OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT. # (optional)
- --------------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
LEXIS DOCUMENT SERVICES INC.
PO BOX 2969
SPRINGFIELD, IL 62708
- --------------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION (if applicable): / / LESSOR/LESSEE / / CONSIGNOR/CONSIGNEE / / NON-UCC FILING
- -----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b)
-------------------------------------------------------------------------------------------------------------------------------
1a. ENTITY'S NAME
ADEXA, INC.
OR -------------------------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
5933 WEST CENTURY BLVD. #1220 LOS ANGELES CA USA 90045
- -----------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL 1e. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D.#, if any
ADD'NL INFO RE OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION / / NONE
- -----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
-------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR -------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
- -----------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D.#, if any
ADD'NL INFO RE OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION / / NONE
- -----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P or IT'S TOTAL ASSIGNEE) EXACT FULL LEGAL NAME - insert only secured party name (3a or 3b)
-------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
SILICON VALLEY BANK
OR -------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
3003 TASMAN DRIVE, MAIL SORT NC-661 SANTA CLARA CA USA 95054
- -----------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
Debtor hereby grants Secured Party a security interest in all of the following, whether now owned or hereafter acquired, and
wherever located, as collateral for the payment and performance of all present and future indebtedness, liabilities,
guarantees and obligations of Debtor to Secured Party: All "accounts," "general intangibles," "chattel paper," "documents,"
"letters of credit," "instruments," "deposit accounts," "inventory," "farm products," " fixtures," "equipment," "investment
property," "securities," "financial assets," "securities accounts," and "security settlements" as such terms are defined in
the California Uniform Commercial Code in effect on the date hereof, and all other types or items of property described on
Exhibit A hereto (but this Financing Statement shall be fully effective notwithstanding any lack of any Exhibit A). Debtor is
not authorized to sell, transfer, or further encumber any of the foregoing collateral, except for the sale of finished
inventory in the ordinary course of business.
CA-S0S
- -----------------------------------------------------------------------------------------------------------------------------------
5. CHECK / / This FINANCING STATEMENT is signed by the Secured Party instead of 7. If filed in Florida (check one)
BOX the Debtor to perfect a security interest (a) in collateral already / / Documentary / / Documentary
(if applicable) subject to a security interest in another jurisdiction when it was stamp tax stamp
brought into this state, or when the debtor's location was changed paid tax not
to this state, or (b) in accordance with other statutory provisions applicable
(additional data may be required)
- -----------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SIGNATURE(S) 8. / / This FINANCING STATEMENT is to be filed
(for record) (or recorded) in the REAL
ESTATE RECORDS
ADEXA, INC. /s/ [ILLEGIBLE], CFO Attach Addendum (if applicable)
- -----------------------------------------------------------------------------------------------------------------------------------
9. Check to REQUEST SEARCH CERTIFICATE(S) on
Debtor(s) (ADDITIONAL FEE)
(optional) / / All Debtors / /Debtor 1
/ / Debtor 2
- -----------------------------------------------------------------------------------------------------------------------------------
[LOGO]
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following
types or items of property (in addition to, and without limiting the types of
property set forth on page 1 hereof):
All "Inventory", "Equipment", "Receivables", and "General Intangibles",
including, without limitation, all of Debtor's "Deposit Accounts" (as the
foregoing terms are defined below), and all money, and all property now or at
any time in the future in Secured Party's possession (including claims and
credit balances), and all proceeds of the foregoing (including proceeds of
any insurance policies, proceeds of proceeds and claims against third
parties), all products of any of the foregoing, and all books and records
related to any of the foregoing.
As used in this Exhibit A the following terms have the following
meanings:
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California at the date hereof.
"Deposit Account" has the meaning set forth in Section 9105 of the Code.
"Equipment" means all of Debtor's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Debtor's operations or owned by Debtor and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the
foregoing, wherever located.
"General Intangibles" means all general intangibles of Debtor, whether
now owned or hereafter created or acquired by Debtor, including, without
limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, security and
other deposits, rights in all litigation presently or hereafter pending for
any cause or claim (whether in contract, tort or otherwise), and all
judgments now or hereafter arising therefrom, all claims of Debtor against
Secured Party, rights to purchase or sell real or personal property, rights
as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and
claims (including without limitation life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims
under guaranties, security interests or other security held by or granted to
Debtor, all rights to indemnification and all other intangible property of
every kind and nature.
"Inventory" means all of Debtor's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Debtor's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"Receivables" means all of Debtor's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Debtor, all guaranties and other security therefor, all merchandise
returned to or repossessed by Debtor, and all rights of stoppage in transit
and all other rights or remedies of an unpaid vendor, lienor or secured party.
FORM UCC-1/UNIFORM COMMERCIAL CODE/FINANCING STATEMENT/STATE OF CONNECTICUT/Rev 10/97
PLEASE TYPE OR PRINT-SEE REVERSE SIDE FOR COMPLETE INSTRUCTION
- ----------------------------------------------------------------------------------------------------------------------------------
SPACE FOR OFFICE USE ONLY SPACE FOR OFFICE USE ONLY
WORK ORDER NUMBER FILING NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
1. SPECIAL DEBTOR/COLLATERAL INFORMATION-CHECK AND COMPLETE IF APPLICABLE
a. Debtor is transmitting utility as defined in section 424-9-402 of the Connecticut General Statutes.
- ---
b. Debtor does not have an interest of record. The name of the owner of such interest is______________________________________
- ---
X c. Products of collateral are claimed and thus covered.
- ---
d. (The Collateral is crops) The below described crops are growing or are to be gorwn on; (describe the real estate below or
- --- on a separate sheet)
e. (The below goods are to become fixtures) Describe real estate below or on a separate sheet and file a financing statement
- --- on the real estate records.
f. Party named in secured party block is a LESSOR and party named in debtor block is a LESSEE.
- ---
g. Party named in secured party block is a CONSIGNOR and party named in debtor block is a CONSIGNEE.
- --- CT-SOS
- ----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR'S EXACT LEGAL NAME- Attach 8 1/2" x 11" sheet to present additional / / Check here for additional debtors.
debtor information.
--------------------------------------------------------------------------------------------------------------------
LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
IF INDIVIDUAL
--------------------------------------------------------------------------------------------------------------------
IF BUSINESS NAME TAXPAYER I.D. #
ADEXA, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box) CITY STATE COUNTRY POSTAL CODE
5933 WEST CENTURY BLVD. #1220 LOS ANGELES CA USA 90045
- ----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S FULL LEGAL NAME- Attach 8 1/2" x 11" sheet to present additional secured party information in conformity with
the statement below.
--------------------------------------------------------------------------------------------------------------------
LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
IF INDIVIDUAL
--------------------------------------------------------------------------------------------------------------------
IF BUSINESS NAME TAXPAYER I.D. #
SILICON VALLEY BANK
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box) CITY STATE COUNTRY POSTAL CODE
3003 TASMAN DRIVE, MAIL SORT NC-661 SANTA CLARA CA USA 95054
- ----------------------------------------------------------------------------------------------------------------------------------
4. (IF APPLICABLE) ASSIGNEE'S FULL LEGAL NAME
debtor information.
--------------------------------------------------------------------------------------------------------------------
LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
IF INDIVIDUAL
--------------------------------------------------------------------------------------------------------------------
IF BUSINESS NAME TAXPAYER I.D. #
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box) CITY STATE COUNTRY POSTAL CODE
- ----------------------------------------------------------------------------------------------------------------------------------
5. THIS FINANCING STATEMENT COVERS THE FOLLOWING TYPES (or items) OF PROPERTY (Describe):
Debtor hereby grants Secured Party a security interest in all of the following, whether now owned or hereafter acquired, and
wherever located, as collateral for the payment and performance of all present and future indebtedness, liabilities,
guarantees and obligations of Debtor to Secured Party: All "accounts," "general intangibles," "chattel paper," "documents,"
"letters of credit," "instruments," "deposit accounts," "inventory," "farm products," " fixtures," "equipment," "investment
property," "securities," "financial assets," " securities accounts," and "security entitlements" as such terms are defined in
the California Uniform Commercial Code in effect on the date hereof, and all other types or items of property described on
Exhibit A hereto (but this Financing Statement shall be fully effective notwithstanding any lack of any Exhibit A). Debtor is
not authorized to sell, transfer, or further encumber any of the foregoing collateral, except for the sale of finished
inventory in the ordinary course of business.
NUMBER OF ADDITIONAL SHEETS PRESENTED 1
-----
- ----------------------------------------------------------------------------------------------------------------------------------
ADEXA, INC. SILICON VALLEY BANK
/s/ [ILLEGIBLE], CFO
- ---------------------------------------------- ---------------------------------------------------
SIGNATURE OF DEBTOR (or Assignor) SIGNATURE OF SECURED PARTY (or Assignee)
- ----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following
types or items of property (in addition to, and without limiting the types of
property set forth on page 1 hereof):
All "Inventory", "Equipment", "Receivables", and "General Intangibles",
including, without limitation, all of Debtor's "Deposit Accounts" (as the
foregoing terms are defined below), and all money, and all property now or at
any time in the future in Secured Party's possession (including claims and
credit balances), and all proceeds of the foregoing (including proceeds of
any insurance policies, proceeds of proceeds and claims against third
parties), all products of any of the foregoing, and all books and records
related to any of the foregoing.
As used in this Exhibit A the following terms have the following
meanings:
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California at the date hereof.
"Deposit Account" has the meaning set forth in Section 9105 of the Code.
"Equipment" means all of Debtor's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Debtor's operations or owned by Debtor and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the
foregoing, wherever located.
"General Intangibles" means all general intangibles of Debtor, whether
now owned or hereafter created or acquired by Debtor, including, without
limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, security and
other deposits, rights in all litigation presently or hereafter pending for
any cause or claim (whether in contract, tort or otherwise), and all
judgments now or hereafter arising therefrom, all claims of Debtor against
Secured Party, rights to purchase or sell real or personal property, rights
as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and
claims (including without limitation life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims
under guaranties, security interests or other security held by or granted to
Debtor, all rights to indemnification and all other intangible property of
every kind and nature.
"Inventory" means all of Debtor's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Debtor's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"Receivables" means all of Debtor's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Debtor, all guaranties and other security therefor, all merchandise
returned to or repossessed by Debtor, and all rights of stoppage in transit
and all other rights or remedies of an unpaid vendor, lienor or secured party.
FORM UCC-1/UNIFORM COMMERCIAL CODE/FINANCING STATEMENT/STATE OF CONNECTICUT/Rev 10/97
PLEASE TYPE OR PRINT-SEE REVERSE SIDE FOR COMPLETE INSTRUCTION
- ----------------------------------------------------------------------------------------------------------------------------------
SPACE FOR OFFICE USE ONLY SPACE FOR OFFICE USE ONLY
WORK ORDER NUMBER FILING NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
1. SPECIAL DEBTOR/COLLATERAL INFORMATION-CHECK AND COMPLETE IF APPLICABLE
a. Debtor is transmitting utility as defined in section 424-9-402 of the Connecticut General Statutes.
- ---
b. Debtor does not have an interest of record. The name of the owner of such interest is______________________________________
- ---
X c. Products of collateral are claimed and thus covered.
- ---
d. (The Collateral is crops) The below described crops are growing or are to be gorwn on; (describe the real estate below or
- --- on a separate sheet)
e. (The below goods are to become fixtures) Describe real estate below or on a separate sheet and file a financing statement
- --- on the real estate records.
f. Party named in secured party block is a LESSOR and party named in debtor block is a LESSEE.
- ---
g. Party named in secured party block is a CONSIGNOR and party named in debtor block is a CONSIGNEE.
- --- CT-SOS
- ----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR'S EXACT LEGAL NAME- Attach 8 1/2" x 11" sheet to present additional / / Check here for additional debtors.
debtor information.
--------------------------------------------------------------------------------------------------------------------
LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
IF INDIVIDUAL
--------------------------------------------------------------------------------------------------------------------
IF BUSINESS NAME TAXPAYER I.D. #
ADEXA, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box) CITY STATE COUNTRY POSTAL CODE
5933 WEST CENTURY BLVD. #1220 LOS ANGELES CA USA 90045
- ----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S FULL LEGAL NAME- Attach 8 1/2" x 11" sheet to present additional secured party information in conformity with
the statement below.
--------------------------------------------------------------------------------------------------------------------
LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
IF INDIVIDUAL
--------------------------------------------------------------------------------------------------------------------
IF BUSINESS NAME TAXPAYER I.D. #
SILICON VALLEY BANK
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box) CITY STATE COUNTRY POSTAL CODE
3003 TASMAN DRIVE, MAIL SORT NC-661 SANTA CLARA CA USA 95054
- ----------------------------------------------------------------------------------------------------------------------------------
4. (IF APPLICABLE) ASSIGNEE'S FULL LEGAL NAME
debtor information.
--------------------------------------------------------------------------------------------------------------------
LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
IF INDIVIDUAL
--------------------------------------------------------------------------------------------------------------------
IF BUSINESS NAME TAXPAYER I.D. #
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box) CITY STATE COUNTRY POSTAL CODE
- ----------------------------------------------------------------------------------------------------------------------------------
5. THIS FINANCING STATEMENT COVERS THE FOLLOWING TYPES (or items) OF PROPERTY (Describe):
Debtor hereby grants Secured Party a security interest in all of the following, whether now owned or hereafter acquired, and
wherever located, as collateral for the payment and performance of all present and future indebtedness, liabilities,
guarantees and obligations of Debtor to Secured Party: All "accounts," "general intangibles," "chattel paper," "documents,"
"letters of credit," "instruments," "deposit accounts," "inventory," "farm products," " fixtures," "equipment," "investment
property," "securities," "financial assets," " securities accounts," and "security entitlements" as such terms are defined in
the California Uniform Commercial Code in effect on the date hereof, and all other types or items of property described on
Exhibit A hereto (but this Financing Statement shall be fully effective notwithstanding any lack of any Exhibit A). Debtor is
not authorized to sell, transfer, or further encumber any of the foregoing collateral, except for the sale of finished
inventory in the ordinary course of business.
NUMBER OF ADDITIONAL SHEETS PRESENTED 1
-----
- ----------------------------------------------------------------------------------------------------------------------------------
ADEXA, INC. SILICON VALLEY BANK
/s/ [ILLEGIBLE], CFO
- ---------------------------------------------- ---------------------------------------------------
SIGNATURE OF DEBTOR (or Assignor) SIGNATURE OF SECURED PARTY (or Assignee)
- ----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following
types or items of property (in addition to, and without limiting the types of
property set forth on page 1 hereof):
All "Inventory", "Equipment", "Receivables", and "General Intangibles",
including, without limitation, all of Debtor's "Deposit Accounts" (as the
foregoing terms are defined below), and all money, and all property now or at
any time in the future in Secured Party's possession (including claims and
credit balances), and all proceeds of the foregoing (including proceeds of
any insurance policies, proceeds of proceeds and claims against third
parties), all products of any of the foregoing, and all books and records
related to any of the foregoing.
As used in this Exhibit A the following terms have the following
meanings:
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California at the date hereof.
"Deposit Account" has the meaning set forth in Section 9105 of the Code.
"Equipment" means all of Debtor's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Debtor's operations or owned by Debtor and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the
foregoing, wherever located.
"General Intangibles" means all general intangibles of Debtor, whether
now owned or hereafter created or acquired by Debtor, including, without
limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, security and
other deposits, rights in all litigation presently or hereafter pending for
any cause or claim (whether in contract, tort or otherwise), and all
judgments now or hereafter arising therefrom, all claims of Debtor against
Secured Party, rights to purchase or sell real or personal property, rights
as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and
claims (including without limitation life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims
under guaranties, security interests or other security held by or granted to
Debtor, all rights to indemnification and all other intangible property of
every kind and nature.
"Inventory" means all of Debtor's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Debtor's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"Receivables" means all of Debtor's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Debtor, all guaranties and other security therefor, all merchandise
returned to or repossessed by Debtor, and all rights of stoppage in transit
and all other rights or remedies of an unpaid vendor, lienor or secured party.
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER FOR
FILING PURSUANT TO THE UNIFORM COMMERCIAL CODE, STATE OF GEORGIA.
- ---------------------------------------------------------------------
1A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
ADEXA, INC. /X/ Business (Legal
5933 WEST CENTURY BLVD. Business Name)
#1220
LOS ANGELES, CA 90045
1B. Enter Social Security/Tax ID#___________ 1C. / /Check if exempt
under Item 6
- ---------------------------------------------------------------------
2A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
/ / Business (Legal
Business Name)
2B. Enter Social Security/Tax ID#___________ 2C. / /Check if exempt ABOVE SPACE FOR RECORDING INFORMATION ONLY
under Item 6
- --------------------------------------------------------------------- 5. Assignee Name and Mailing Address / / Individual (Last,
3A. Debtor Name and Mailing Address: / / Individual (Last, First, First, Middle
Middle Name) Name)
/ / Business (Legal / / Business (Legal
Business Name) Business Name)
------------------------------------------------------------
6. Exceptions for Social Security/Tax ID# - O.C.G.A.
11.9.4021(9): Financing Statement filed to perfect a
security interest in collateral already subject to a
3B. Enter Social Security/Tax ID#___________ 3C. / /Check if exempt security interest in another jurisdiction when it is
under Item 6 brought into this state or when the debtor's location
- ---------------------------------------------------------------------- is changed to this state, or the debtor is not required
4. Secured Party Name and Mailing / / Individual (Last, First, have such a number.
Address: Middle Name) ------------------------------------------------------------
/X/ Business (Legal 7. / / Check Only if BOTH: (I) Collateral is consumer
SILICON VALLEY BANK Business Name) goods as defined in O.C.G.A. 11.9.109 and (II) the
3003 TASMAN DRIVE, MAIL secured obligation is originally $5,000 or less,
SORT NC-661 and give maturity date (MONTH/DAY/YEAR) or state
SANTA CLARA, CA 95054 "None" ________________________________.
------------------------------------------------------------
8. Check ONLY if applicable.
A. / / Collateral on Consignment.
B. / / Collateral on Lease.
- -----------------------------------------------------------------------------------------------------------------------------------
9A. This financing statement covers the following types or items of collateral: 9C. Enter collateral code(s) from back of
Debtor hereby grants Secured Party a security interest in all of the following, form that best describes collateral
whether now owned or hereafter acquired, and wherever located, as collateral for covered by this filing:
the payment and performance of all present and future indebtedness, liabilities,
guarantees and obligations of Debtor to Secured Party: All "accounts," "general 0100 0700
intangibles," "chattel paper," "documents," "letters of credit," "instruments," ---------- ----------
"deposit accounts," "inventory," "farm products," "fixtures," "equipment," 0200 0900
"investment property," "securities," "financial assets," "securities accounts," ---------- ----------
and "security settlements" as such terms are defined in the California Uniform 0300 1000
Commercial Code in effect on the date hereof, and all other types or items of ---------- ----------
property described on Exhibit A hereto (but this Financing Statement shall be 0400 1100
fully effective notwithstanding any lack of any Exhibit A). Debtor is not ---------- ----------
authorized to sell, transfer, or further encumber any of the foregoing 0500 1200
collateral, except for the sale of finished inventory in the ordinary course ---------- ----------
of business. 0600 1300
---------- ----------
------------------------------------------
9D. Number of additional sheets presented:
9B. /X/ Products of collateral are also covered. 1
---
- -----------------------------------------------------------------------------------------------------------------------------------
10. Check if applicable and include reasonable description of real estate in Item 9A:
A. / / Crops growing or to be grown. B. / / Minerals or the like (including oil and gas) C. / / Fixture filing pursuant to
or accounts subject to O.C.G.A. 11.9-103(5). O.C.G.A. 11-9-313.
- -----------------------------------------------------------------------------------------------------------------------------------
11. Name of the Record Owner(s) of Record Lease(s) (if debtor does not have an interest of record in the real estate):
- -----------------------------------------------------------------------------------------------------------------------------------
12. County or Counties in which the affected real setae is located (Must be identified if filing covers crops, mineral or
fixtures):
- -------------- --------------- -------------- --------------- --------------- --------------- -------------- ---------------
- -----------------------------------------------------------------------------------------------------------------------------------
13. This statement is filed without the debtor's signature to perfect a security interest in collateral (check only if applicable):
A. / / already subject to a security interest in another jurisdiction when it was brought into this state or debtor's
location changed to this state;
B. / / which is proceeds of the original collateral description above in which a security interest was perfected;
C. / / as to which the filing has lapsed;
D. / / acquired after a change of debtor's name, identity or corporate structure; or
E. / / described in a security agreement/real estate mortgage attached hereto in accordance with
O.C.G.A. 11.9.402(1). GA-Barrow County
- -----------------------------------------------------------------------------------------------------------------------------------
14. Signature(s) of Debtor(s) 15. Signature(s) of Secured Party(ies)
ADEXA, INC. SILICON VALLEY BANK
-------------------------------------------------- -----------------------------------------------------
/s/ [ILLEGIBLE], CFO
-------------------------------------------------- -----------------------------------------------------
-------------------------------------------------- -----------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
15. Return Copy To: Name and Address STATE OF GEORGIA - FINANCING STATEMENT
LEXIS DOCUMENT SERVICES INC. UCC-1 (REVISED 1/1/1995)
PO BOX 2969
SPRINGFIELD, IL 62708 FORM MUST BE TYPED
READ INSTRUCTIONS ON BACK
BEFORE FILLING OUT FORM.
STANDARD FORM UCC-1 - APPROVED 1/1/1996 BY GEORGIA SUPERIOR COURT
CLERK'S COOPERATIVE AUTHORITY
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following
types or items of property (in addition to, and without limiting the types of
property set forth on page 1 hereof):
All "Inventory", "Equipment", "Receivables", and "General Intangibles",
including, without limitation, all of Debtor's "Deposit Accounts" (as the
foregoing terms are defined below), and all money, and all property now or at
any time in the future in Secured Party's possession (including claims and
credit balances), and all proceeds of the foregoing (including proceeds of
any insurance policies, proceeds of proceeds and claims against third
parties), all products of any of the foregoing, and all books and records
related to any of the foregoing.
As used in this Exhibit A the following terms have the following
meanings:
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California at the date hereof.
"Deposit Account" has the meaning set forth in Section 9105 of the code.
"Equipment" means all of Debtor's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Debtor's operations or owned by Debtor and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the
foregoing, wherever located.
"General Intangibles" means all general intangibles of Debtor, whether
now owned or hereafter created or acquired by Debtor, including, without
limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, security and
other deposits, rights in all litigation presently or hereafter pending for
any cause or claim (whether in contract, tort or otherwise), and all
judgments now or hereafter arising therefrom, all claims of Debtor against
Secured Party, rights to purchase or sell real or personal property, rights
as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and
claims (including without limitation life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims
under guaranties, security interests or other security held by or granted to
Debtor, all rights to indemnification and all other intangible property of
every kind and nature.
"Inventory" means all of Debtor's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Debtor's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"Receivables" means all of Debtor's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Debtor, all guaranties and other security therefor, all merchandise
returned to or repossessed by Debtor, and all rights of stoppage in transit
and all other rights or remedies of an unpaid vendor, lienor or secured party.
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER FOR
FILING PURSUANT TO THE UNIFORM COMMERCIAL CODE, STATE OF GEORGIA.
- ---------------------------------------------------------------------
1A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
ADEXA, INC. /X/ Business (Legal
5933 WEST CENTURY BLVD. Business Name)
#1220
LOS ANGELES, CA 90045
1B. Enter Social Security/Tax ID#___________ 1C. / /Check if exempt
under Item 6
- ---------------------------------------------------------------------
2A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
/ / Business (Legal
Business Name)
2B. Enter Social Security/Tax ID#___________ 2C. / /Check if exempt ABOVE SPACE FOR RECORDING INFORMATION ONLY
under Item 6
- --------------------------------------------------------------------- 5. Assignee Name and Mailing Address / / Individual (Last,
3A. Debtor Name and Mailing Address: / / Individual (Last, First, First, Middle
Middle Name) Name)
/ / Business (Legal / / Business (Legal
Business Name) Business Name)
------------------------------------------------------------
6. Exceptions for Social Security/Tax ID# - O.C.G.A.
11.9.4021(9): Financing Statement filed to perfect a
security interest in collateral already subject to a
3B. Enter Social Security/Tax ID#___________ 3C. / /Check if exempt security interest in another jurisdiction when it is
under Item 6 brought into this state or when the debtor's location
- ---------------------------------------------------------------------- is changed to this state, or the debtor is not required
4. Secured Party Name and Mailing / / Individual (Last, First, have such a number.
Address: Middle Name) ------------------------------------------------------------
/X/ Business (Legal 7. / / Check Only if BOTH: (I) Collateral is consumer
SILICON VALLEY BANK Business Name) goods as defined in O.C.G.A. 11.9.109 and (II) the
3003 TASMAN DRIVE, MAIL secured obligation is originally $5,000 or less,
SORT NC-661 and give maturity date (MONTH/DAY/YEAR) or state
SANTA CLARA, CA 95054 "None" ________________________________.
------------------------------------------------------------
8. Check ONLY if applicable.
A. / / Collateral on Consignment.
B. / / Collateral on Lease.
- -----------------------------------------------------------------------------------------------------------------------------------
9A. This financing statement covers the following types or items of collateral: 9C. Enter collateral code(s) from back of
Debtor hereby grants Secured Party a security interest in all of the following, form that best describes collateral
whether now owned or hereafter acquired, and wherever located, as collateral for covered by this filing:
the payment and performance of all present and future indebtedness, liabilities,
guarantees and obligations of Debtor to Secured Party: All "accounts," "general 0100 0700
intangibles," "chattel paper," "documents," "letters of credit," "instruments," ---------- ----------
"deposit accounts," "inventory," "farm products," "fixtures," "equipment," 0200 0900
"investment property," "securities," "financial assets," "securities accounts," ---------- ----------
and "security settlements" as such terms are defined in the California Uniform 0300 1000
Commercial Code in effect on the date hereof, and all other types or items of ---------- ----------
property described on Exhibit A hereto (but this Financing Statement shall be 0400 1100
fully effective notwithstanding any lack of any Exhibit A). Debtor is not ---------- ----------
authorized to sell, transfer, or further encumber any of the foregoing 0500 1200
collateral, except for the sale of finished inventory in the ordinary course ---------- ----------
of business. 0600 1300
---------- ----------
------------------------------------------
9D. Number of additional sheets presented:
9B. /X/ Products of collateral are also covered. 1
---
- -----------------------------------------------------------------------------------------------------------------------------------
10. Check if applicable and include reasonable description of real estate in Item 9A:
A. / / Crops growing or to be grown. B. / / Minerals or the like (including oil and gas) C. / / Fixture filing pursuant to
or accounts subject to O.C.G.A. 11.9-103(5). O.C.G.A. 11-9-313.
- -----------------------------------------------------------------------------------------------------------------------------------
11. Name of the Record Owner(s) of Record Lease(s) (if debtor does not have an interest of record in the real estate):
- -----------------------------------------------------------------------------------------------------------------------------------
12. County or Counties in which the affected real setae is located (Must be identified if filing covers crops, mineral or
fixtures):
- -------------- --------------- -------------- --------------- --------------- --------------- -------------- ---------------
- -----------------------------------------------------------------------------------------------------------------------------------
13. This statement is filed without the debtor's signature to perfect a security interest in collateral (check only if applicable):
A. / / already subject to a security interest in another jurisdiction when it was brought into this state or debtor's
location changed to this state;
B. / / which is proceeds of the original collateral description above in which a security interest was perfected;
C. / / as to which the filing has lapsed;
D. / / acquired after a change of debtor's name, identity or corporate structure; or
E. / / described in a security agreement/real estate mortgage attached hereto in accordance with
O.C.G.A. 11.9.402(1). GA-Barrow County
- -----------------------------------------------------------------------------------------------------------------------------------
14. Signature(s) of Debtor(s) 15. Signature(s) of Secured Party(ies)
ADEXA, INC. SILICON VALLEY BANK
-------------------------------------------------- -----------------------------------------------------
/s/ [ILLEGIBLE], CFO
-------------------------------------------------- -----------------------------------------------------
-------------------------------------------------- -----------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
15. Return Copy To: Name and Address STATE OF GEORGIA - FINANCING STATEMENT
LEXIS DOCUMENT SERVICES INC. UCC-1 (REVISED 1/1/1995)
PO BOX 2969
SPRINGFIELD, IL 62708 FORM MUST BE TYPED
READ INSTRUCTIONS ON BACK
BEFORE FILLING OUT FORM.
STANDARD FORM UCC-1 - APPROVED 1/1/1996 BY GEORGIA SUPERIOR COURT
CLERK'S COOPERATIVE AUTHORITY
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following
types or items of property (in addition to, and without limiting the types of
property set forth on page 1 hereof):
All "Inventory", "Equipment", "Receivables", and "General Intangibles",
including, without limitation, all of Debtor's "Deposit Accounts" (as the
foregoing terms are defined below), and all money, and all property now or at
any time in the future in Secured Party's possession (including claims and
credit balances), and all proceeds of the foregoing (including proceeds of
any insurance policies, proceeds of proceeds and claims against third
parties), all products of any of the foregoing, and all books and records
related to any of the foregoing.
As used in this Exhibit A the following terms have the following
meanings:
"Code" means the Uniform Commercial Code as adopted and in effect in the
State of California at the date hereof.
"Deposit Account" has the meaning set forth in Section 9105 of the code.
"Equipment" means all of Debtor's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Debtor's operations or owned by Debtor and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the
foregoing, wherever located.
"General Intangibles" means all general intangibles of Debtor, whether
now owned or hereafter created or acquired by Debtor, including, without
limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings,
blueprints, patents, patent applications, trademarks and the goodwill of the
business symbolized thereby, names, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, customer lists, security and
other deposits, rights in all litigation presently or hereafter pending for
any cause or claim (whether in contract, tort or otherwise), and all
judgments now or hereafter arising therefrom, all claims of Debtor against
Secured Party, rights to purchase or sell real or personal property, rights
as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and
claims (including without limitation life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims
under guaranties, security interests or other security held by or granted to
Debtor, all rights to indemnification and all other intangible property of
every kind and nature.
"Inventory" means all of Debtor's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and
goods in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Debtor's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property,
and all warehouse receipts, documents of title and other documents
representing any of the foregoing.
"Receivables" means all of Debtor's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts,
investment property, documents and all other forms of obligations at any time
owing to Debtor, all guaranties and other security therefor, all merchandise
returned to or repossessed by Debtor, and all rights of stoppage in transit
and all other rights or remedies of an unpaid vendor, lienor or secured party.
This STATEMENT is presented for filing pursuant to the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. FINANCING 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. FINANCING 1C. PLACE OF FILING ORIG.
STATEMENT FINANCING STATEMENT STATEMENT FINANCING STATEMENT
9913160414 05/05/1999 CA SOS
- ----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY OR
FEDERAL TAX NO.
PARAGON MANAGEMENT SYSTEMS, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
5933 WEST CENTURY BLVD. #1220 LOS ANGELES, CA 90045
- ----------------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR
FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
3B. MAILING ADDRESS 3C. CITY, STATE 3D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO.,
FEDERAL TAX NO. OR BANK
NAME SILICON VALLEY BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS 3003 TASMAN DRIVE, MAIL SORT NC-661
CITY SANTA CLARA STATE CA ZIP CODE 95054
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO.,
FEDERAL TAX NO. OR BANK
NAME TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6.
A / / CONTINUATION -- The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued. If collateral is crops or timber, check here / / and Insert description of real
property on which growing or to be grown in item 7 below.
---------------------------------------------------------------------------------------------------------------------------
B / / RELEASE -- From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
---------------------------------------------------------------------------------------------------------------------------
C / / ASSIGNMENT -- The Secured Party Certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
---------------------------------------------------------------------------------------------------------------------------
D / / TERMINATION -- The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
---------------------------------------------------------------------------------------------------------------------------
E /X/ AMENDMENT -- The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
(Signature of Debtor required on all amendments.)
---------------------------------------------------------------------------------------------------------------------------
F / / OTHER
- ----------------------------------------------------------------------------------------------------------------------------------
7. The original financing statement is amended to:
1. Change the Debtor's name from "Paragon Management Systems, Inc." to "Adexa, Inc."
2. Add "Paragon Management Systems, Inc." as Debtor's tradename.
- ----------------------------------------------------------------------------------------------------------------------------------
8. C 9. This Space for Use of Filing
(DATE)___________________ 19_____ O Officer (Date, Time, Filing
D Office)
PARAGON MANAGEMENT SYSTEMS, INC. nka ADEXA, INC. E
------------------------------------------------------------------------------------ ---
1
BY: /s/ [ILLEGIBLE], CFO
--------------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE)
3
SILICON VALLEY BANK
--------------------------------------------------------------------------------- 4
BY:
--------------------------------------------------------------------------------- 5
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
- ----------------------------------------------------------------------------------------- 6
10. RETURN COPY TO CA-S0S
7
NAME LEXIS DOCUMENT SERVICES INC
ADDRESS PO BOX 2969 8
CITY AND SPRINGFIELD, IL 62708
STATE 9
(1) FILING OFFICER COPY
STANDARD FORM-FILING FEE Uniform Commercial Code-form UCC-2
APPROVED BY THE SECRETARY OF STATE
This STATEMENT is presented for filing pursuant to the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. FINANCING 1A. DATE OF FILING OF ORIG. 1B. DATE OF ORIG. FINANCING 1C. PLACE OF FILING ORIG.
STATEMENT FINANCING STATEMENT STATEMENT FINANCING STATEMENT
9913160414 05/05/1999 CA SOS
- ----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY OR
FEDERAL TAX NO.
PARAGON MANAGEMENT SYSTEMS, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
5933 WEST CENTURY BLVD. #1220 LOS ANGELES, CA 90045
- ----------------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR
FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
3B. MAILING ADDRESS 3C. CITY, STATE 3D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO.,
FEDERAL TAX NO. OR BANK
NAME SILICON VALLEY BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS 3003 TASMAN DRIVE, MAIL SORT NC-661
CITY SANTA CLARA STATE CA ZIP CODE 95054
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO.,
FEDERAL TAX NO. OR BANK
NAME TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6.
A / / CONTINUATION -- The original Financing Statement between the foregoing Debtor and Secured Party bearing the file number
and date shown above is continued. If collateral is crops or timber, check here / / and Insert description of real
property on which growing or to be grown in item 7 below.
---------------------------------------------------------------------------------------------------------------------------
B / / RELEASE -- From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
---------------------------------------------------------------------------------------------------------------------------
C / / ASSIGNMENT -- The Secured Party Certifies that the Secured Party has assigned to the Assignee above named, all the
Secured Party's rights under the Financing Statement bearing the file number shown above in the collateral described
in item 7 below.
---------------------------------------------------------------------------------------------------------------------------
D / / TERMINATION -- The Secured Party certifies that the Secured Party no longer claims a security interest under the
Financing Statement bearing the file number shown above.
---------------------------------------------------------------------------------------------------------------------------
E /X/ AMENDMENT -- The Financing Statement bearing the file number shown above is amended as set forth in item 7 below.
(Signature of Debtor required on all amendments.)
---------------------------------------------------------------------------------------------------------------------------
F / / OTHER
- ----------------------------------------------------------------------------------------------------------------------------------
7. The original financing statement is amended to:
1. Change the Debtor's name from "Paragon Management Systems, Inc." to "Adexa, Inc."
2. Add "Paragon Management Systems, Inc." as Debtor's tradename.
- ----------------------------------------------------------------------------------------------------------------------------------
8. C 9. This Space for Use of Filing
(DATE)___________________ 19_____ O Officer (Date, Time, Filing
D Office)
PARAGON MANAGEMENT SYSTEMS, INC. nka ADEXA, INC. E
------------------------------------------------------------------------------------ ---
1
BY: /s/ [ILLEGIBLE], CFO
--------------------------------------------------------------------------------- 2
SIGNATURE(S) OF DEBTOR(S) (TITLE)
3
SILICON VALLEY BANK
--------------------------------------------------------------------------------- 4
BY:
--------------------------------------------------------------------------------- 5
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
- ----------------------------------------------------------------------------------------- 6
10. RETURN COPY TO CA-S0S
7
NAME LEXIS DOCUMENT SERVICES INC
ADDRESS PO BOX 2969 8
CITY AND SPRINGFIELD, IL 62708
STATE 9
(1) FILING OFFICER COPY
STANDARD FORM-FILING FEE Uniform Commercial Code-form UCC-2
APPROVED BY THE SECRETARY OF STATE
FORM UCC-3/UNIFORM COMMERCIAL CODE/STATE OF CONNECTICUT
PLEASE TYPE OR PRINT - SEE REVERSE SIDE FOR COMPLETE INSTRUCTION UCC-3
New. 5/99
- ----------------------------------------------------------------------------------------------------------------------------------
SPACE FOR OFFICE USE ONLY SPACE FOR OFFICE USE ONLY
WORK ORDER NUMBER FILING NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
1. TYPE OF FILING - Place a check mark next to the appropriate selection. Only one selection may be made. CT-SOS
a. Continuation: The financing statement between the parties named below and bearing the number indicated in item 3 is
- --- continued for a subsequent term.
X b. Amendment: The financing statement bearing the number indicated in item 3 is amended as set forth in item 7.
- ---
c. Assignment: The secured party assigns to the assignee named below all rights established under the financing statement
- --- bearing the number indicated in item 3.
d. Partial Assignment: The secured party assigns to the assignee named below rights established under the financing
- --- statement bearing the number indicated in item 3 to the extend stated in item 7.
e. Partial Release: The secured party releases the property set forth in item 7 from the collateral presented in the original
- --- financing statement bearing the number indicated in item 3.
f. Termination: The secured party no longer claims a security interest under the financing statement bearing the number
- --- indicated in item 3.
- ----------------------------------------------------------------------------------------------------------------------------------
2. THIS STATEMENT REFERS TO THE ORIGINAL FINANCING STATEMENT NO. 0001922091
---------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S FULL LEGAL NAME - Attach 8 1/2" x 11" sheet to present additional debtor information. / / Check here for
additional debtors.
- ----------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
------------------------------------------------------------------------------------------------------------------
BUSINESS NAME TAXPAYER I.D.#
PARAGON MANAGEMENT SYSTEMS, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box)
5933 WEST CENTURY BLVD. #1220
- ----------------------------------------------------------------------------------------------------------------------------------
CITY STATE COUNTRY POSTAL CODE
LOS ANGELES CA USA 90045
- ----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY'S FULL LEGAL NAME - Attach 8 1/2" x 11" sheet to present additional secured party / / Check here for
information. additional secured
parties.
- ----------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
------------------------------------------------------------------------------------------------------------------
BUSINESS NAME TAXPAYER I.D.#
SILICON VALLEY BANK
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box)
3003 TASMAN DRIVE, MAIL SORT NC-661
- ----------------------------------------------------------------------------------------------------------------------------------
CITY STATE COUNTRY POSTAL CODE
SANTA CLARA CA USA 95054
- ----------------------------------------------------------------------------------------------------------------------------------
5. (IF APPLICABLE) ASSIGNEE'S FULL LEGAL NAME - Attach 8 1/2" x 11" sheet to present additional assignee / / Check here for
information. additional
assignees.
- ----------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
------------------------------------------------------------------------------------------------------------------
BUSINESS NAME TAXPAYER I.D.#
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box)
- ----------------------------------------------------------------------------------------------------------------------------------
CITY STATE COUNTRY POSTAL CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. Use the following space and attachments referenced below to set forth any information relating to the selection made in item
2 above.
The original financing statement is amended to:
1. Change the Debtor's name from "Paragon Management Systems, Inc." to "Adexa, Inc."
2. Add "Paragon Management Systems, Inc." as Debtor's tradename.
NUMBER OF ADDITIONAL SHEETS PRESENTED _____________
- ----------------------------------------------------------------------------------------------------------------------------------
PARAGON MANAGEMENT SYSTEMS, INC. nka ADEXA, SILICON VALLEY BANK
INC.
/s/ [ILLEGIBLE], CFO
-------------------------------------------------- ----------------------------------------
SIGNATURE(S) OF DEBTOR(S) SIGNATURE(S) OF SECURED PARTY(IES)
- ----------------------------------------------------------------------------------------------------------------------------------
FORM UCC-3/UNIFORM COMMERCIAL CODE/STATE OF CONNECTICUT
PLEASE TYPE OR PRINT - SEE REVERSE SIDE FOR COMPLETE INSTRUCTION UCC-3
New. 5/99
- ----------------------------------------------------------------------------------------------------------------------------------
SPACE FOR OFFICE USE ONLY SPACE FOR OFFICE USE ONLY
WORK ORDER NUMBER FILING NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
1. TYPE OF FILING - Place a check mark next to the appropriate selection. Only one selection may be made. CT-SOS
a. Continuation: The financing statement between the parties named below and bearing the number indicated in item 3 is
- --- continued for a subsequent term.
X b. Amendment: The financing statement bearing the number indicated in item 3 is amended as set forth in item 7.
- ---
c. Assignment: The secured party assigns to the assignee named below all rights established under the financing statement
- --- bearing the number indicated in item 3.
d. Partial Assignment: The secured party assigns to the assignee named below rights established under the financing
- --- statement bearing the number indicated in item 3 to the extend stated in item 7.
e. Partial Release: The secured party releases the property set forth in item 7 from the collateral presented in the original
- --- financing statement bearing the number indicated in item 3.
f. Termination: The secured party no longer claims a security interest under the financing statement bearing the number
- --- indicated in item 3.
- ----------------------------------------------------------------------------------------------------------------------------------
2. THIS STATEMENT REFERS TO THE ORIGINAL FINANCING STATEMENT NO. 0001922091
---------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S FULL LEGAL NAME - Attach 8 1/2" x 11" sheet to present additional debtor information. / / Check here for
additional debtors.
- ----------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
------------------------------------------------------------------------------------------------------------------
BUSINESS NAME TAXPAYER I.D.#
PARAGON MANAGEMENT SYSTEMS, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box)
5933 WEST CENTURY BLVD. #1220
- ----------------------------------------------------------------------------------------------------------------------------------
CITY STATE COUNTRY POSTAL CODE
LOS ANGELES CA USA 90045
- ----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY'S FULL LEGAL NAME - Attach 8 1/2" x 11" sheet to present additional secured party / / Check here for
information. additional secured
parties.
- ----------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
------------------------------------------------------------------------------------------------------------------
BUSINESS NAME TAXPAYER I.D.#
SILICON VALLEY BANK
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box)
3003 TASMAN DRIVE, MAIL SORT NC-661
- ----------------------------------------------------------------------------------------------------------------------------------
CITY STATE COUNTRY POSTAL CODE
SANTA CLARA CA USA 95054
- ----------------------------------------------------------------------------------------------------------------------------------
5. (IF APPLICABLE) ASSIGNEE'S FULL LEGAL NAME - Attach 8 1/2" x 11" sheet to present additional assignee / / Check here for
information. additional
assignees.
- ----------------------------------------------------------------------------------------------------------------------------------
INDIVIDUAL LAST NAME FIRST NAME MIDDLE NAME SUFFIX S.S. NUMBER
------------------------------------------------------------------------------------------------------------------
BUSINESS NAME TAXPAYER I.D.#
- ----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS (Street or P.O. Box)
- ----------------------------------------------------------------------------------------------------------------------------------
CITY STATE COUNTRY POSTAL CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. Use the following space and attachments referenced below to set forth any information relating to the selection made in item
2 above.
The original financing statement is amended to:
1. Change the Debtor's name from "Paragon Management Systems, Inc." to "Adexa, Inc."
2. Add "Paragon Management Systems, Inc." as Debtor's tradename.
NUMBER OF ADDITIONAL SHEETS PRESENTED _____________
- ----------------------------------------------------------------------------------------------------------------------------------
PARAGON MANAGEMENT SYSTEMS, INC. nka ADEXA, SILICON VALLEY BANK
INC.
/s/ [ILLEGIBLE], CFO
-------------------------------------------------- ----------------------------------------
SIGNATURE(S) OF DEBTOR(S) SIGNATURE(S) OF SECURED PARTY(IES)
- ----------------------------------------------------------------------------------------------------------------------------------
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER FOR
FILING PURSUANT TO THE UNIFORM COMMERCIAL CODE, STATE OF GEORGIA.
- ---------------------------------------------------------------------
1A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
PARAGON MANAGEMENT SYSTEMS, /X/ Business (Legal
INC. Business Name)
5933 WEST CENTURY BLVD. #1220
LOS ANGELES, CA 90045
1B. Enter Social Security/Tax ID#___________ 1C. / /Check if exempt
under Item 6
- ---------------------------------------------------------------------
2A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
/ / Business (Legal
Business Name)
2B. Enter Social Security/Tax ID#___________ 2C. / /Check if exempt ABOVE SPACE FOR RECORDING INFORMATION ONLY
under Item 6
- --------------------------------------------------------------------- 5. Assignee Name and Mailing Address / / Individual (Last,
3A. Debtor Name and Mailing Address: / / Individual (Last, First, First, Middle
Middle Name) Name)
/ / Business (Legal / / Business (Legal
Business Name) Business Name)
------------------------------------------------------------
6A. Exceptions for Social Security/Tax ID# - O.C.G.A.
11.9.402(9): this UCC-3 statement relates to an
original financing statement filed to perfect a
3B. Enter Social Security/Tax ID#___________ 3C. / /Check if exempt a security interest in collateral a ready subject to a
under Item 6 security interest in another jurisdiction when it was
- ---------------------------------------------------------------------- changed to this state, at the debtor was not required
4. Secured Party Name and Mailing / / Individual (Last, First, to have such a number; or (2) Pursuant to O.C.G.A.
Middle Name) 11-12-102(2)-(3), this statements is a Transaction
Filing relating to an original financing statement
Address: filed prior to January 1, 1995.
/X/ Business (Legal ------------------------------------------------------------
SILICON VALLEY BANK Business Name) 6B. / / This statement is a transitional filing relating
3003 TASMAN DRIVE, MAIL SORT to January 1, 1996.
NC-661 and give maturity date (MONTH/DAY/YEAR) or state
SANTA CLARA, CA 95054 "None" ________________________________.
- -----------------------------------------------------------------------------------------------------------------------------------
7A. File Number of Original Financing Statement 7B. County in which filed 7C. Date of Original Filing
00799004927 GA-Barrow County 05/05/1999
- -----------------------------------------------------------------------------------------------------------------------------------
8. Type of Statement (Check only one)
A. / / Continuation. The original Financing Statement between the Debtor and Secured Party bearing the file number shown above
is still effective. If collateral consists ONLY of consumer goods as defined in O.C.G.A. 11.9.109 and
the secured obligation is originally $5,000 or less, give maturity date (MONTH/DAY/YEAR) of state
"None"________________
B. / / Release. The Secured Party release the collateral described in item 2A below from the Financing Statement bearing the
file number shown above.
C. / / Partial Assignment. Some of the Secured Party's rights under the financing Statement bearing the file number shown
above have been assigned to the assignee above named. A jurisdiction of the collateral subject to
the assignment is set forth in item 2A below.
D. / / Assignment. The Secured Party has assigned to the Assignee above named all the Secured Party's rights under the
financing Statement bearing the file number shown above.
E. /X/ Amendment. The Financing Statement bearing the file number shown above is amended as set forth in item 9A below.
F. / / Termination. The Secured Party no longer claims a security interest under the Financing Statement bearing the file
number shown above.
- -----------------------------------------------------------------------------------------------------------------------------------
9A. Description (Required for Release, Assignment or Amendment) 9C. Enter collateral code(s) from back
of form that best describes collateral
The original financing statement is amended to: covered by this filing:
1. Change the Debtor's name from "Paragon Management Systems, Inc." to ------------ ------------
"Adexa, Inc." ------------ ------------
------------ ------------
2. Add "Paragon Management Systems, Inc." as Debtor's tradename. ------------ ------------
------------ ------------
------------ ------------
9D. Number of additional sheets
9B. / /Products of collateral are also covered. presented: ________________
- -----------------------------------------------------------------------------------------------------------------------------------
10. Signature(s) of Debtor(s) 11. Signature(s) of Secured Party(ies)
PARAGON MANAGEMENT SYSTEMS, INC. nka SILICON VALLEY BANK
ADEXA, INC.
-------------------------------------------------- -----------------------------------------------------
[ILLEGIBLE], CFO
-------------------------------------------------- -----------------------------------------------------
-------------------------------------------------- -----------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
12. Return Copy To: Name and Address STATE OF GEORGIA - STATEMENTS OF CONTINUATION
LEXIS DOCUMENT SERVICES INC. RELEASE, ASSIGNMENT, AMENDMENT, TERMINATION,
PO BOX 2969 UCC-3 (REVISED 1/1/1995)
SPRINGFIELD, IL 62708 FORM MUST BE TYPED
READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM.
STANDARD FORM UCC-3 - APPROVED 1/1/1996 BY GEORGIA SUPERIOR COURT CLERK'S COOPERATIVE AUTHORITY FILING OFFICER COPY
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER FOR
FILING PURSUANT TO THE UNIFORM COMMERCIAL CODE, STATE OF GEORGIA.
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1A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
PARAGON MANAGEMENT SYSTEMS, /X/ Business (Legal
INC. Business Name)
5933 WEST CENTURY BLVD. #1220
LOS ANGELES, CA 90045
1B. Enter Social Security/Tax ID#___________ 1C. / /Check if exempt
under Item 6
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2A. Debtor Name and Mailing Address: / / Individual (Last, First,
Middle Name)
/ / Business (Legal
Business Name)
2B. Enter Social Security/Tax ID#___________ 2C. / /Check if exempt ABOVE SPACE FOR RECORDING INFORMATION ONLY
under Item 6
- --------------------------------------------------------------------- 5. Assignee Name and Mailing Address / / Individual (Last,
3A. Debtor Name and Mailing Address: / / Individual (Last, First, First, Middle
Middle Name) Name)
/ / Business (Legal / / Business (Legal
Business Name) Business Name)
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6A. Exceptions for Social Security/Tax ID# - O.C.G.A.
11.9.402(9): this UCC-3 statement relates to an
original financing statement filed to perfect a
3B. Enter Social Security/Tax ID#___________ 3C. / /Check if exempt a security interest in collateral a ready subject to a
under Item 6 security interest in another jurisdiction when it was
- ---------------------------------------------------------------------- changed to this state, at the debtor was not required
4. Secured Party Name and Mailing / / Individual (Last, First, to have such a number; or (2) Pursuant to O.C.G.A.
Middle Name) 11-12-102(2)-(3), this statements is a Transaction
Filing relating to an original financing statement
Address: filed prior to January 1, 1995.
/X/ Business (Legal ------------------------------------------------------------
SILICON VALLEY BANK Business Name) 6B. / / This statement is a transitional filing relating
3003 TASMAN DRIVE, MAIL SORT to January 1, 1996.
NC-661 and give maturity date (MONTH/DAY/YEAR) or state
SANTA CLARA, CA 95054 "None" ________________________________.
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7A. File Number of Original Financing Statement 7B. County in which filed 7C. Date of Original Filing
00799004927 GA-Barrow County 05/05/1999
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8. Type of Statement (Check only one)
A. / / Continuation. The original Financing Statement between the Debtor and Secured Party bearing the file number shown above
is still effective. If collateral consists ONLY of consumer goods as defined in O.C.G.A. 11.9.109 and
the secured obligation is originally $5,000 or less, give maturity date (MONTH/DAY/YEAR) of state
"None"________________
B. / / Release. The Secured Party release the collateral described in item 2A below from the Financing Statement bearing the
file number shown above.
C. / / Partial Assignment. Some of the Secured Party's rights under the financing Statement bearing the file number shown
above have been assigned to the assignee above named. A jurisdiction of the collateral subject to
the assignment is set forth in item 2A below.
D. / / Assignment. The Secured Party has assigned to the Assignee above named all the Secured Party's rights under the
financing Statement bearing the file number shown above.
E. /X/ Amendment. The Financing Statement bearing the file number shown above is amended as set forth in item 9A below.
F. / / Termination. The Secured Party no longer claims a security interest under the Financing Statement bearing the file
number shown above.
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9A. Description (Required for Release, Assignment or Amendment) 9C. Enter collateral code(s) from back
of form that best describes collateral
The original financing statement is amended to: covered by this filing:
1. Change the Debtor's name from "Paragon Management Systems, Inc." to ------------ ------------
"Adexa, Inc." ------------ ------------
------------ ------------
2. Add "Paragon Management Systems, Inc." as Debtor's tradename. ------------ ------------
------------ ------------
------------ ------------
9D. Number of additional sheets
9B. / /Products of collateral are also covered. presented: ________________
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10. Signature(s) of Debtor(s) 11. Signature(s) of Secured Party(ies)
PARAGON MANAGEMENT SYSTEMS, INC. nka SILICON VALLEY BANK
ADEXA, INC.
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[ILLEGIBLE], CFO
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12. Return Copy To: Name and Address STATE OF GEORGIA - STATEMENTS OF CONTINUATION
LEXIS DOCUMENT SERVICES INC. RELEASE, ASSIGNMENT, AMENDMENT, TERMINATION,
PO BOX 2969 UCC-3 (REVISED 1/1/1995)
SPRINGFIELD, IL 62708 FORM MUST BE TYPED
READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM.
STANDARD FORM UCC-3 - APPROVED 1/1/1996 BY GEORGIA SUPERIOR COURT CLERK'S COOPERATIVE AUTHORITY FILING OFFICER COPY