EXHIBIT 10.1
LOAN AND SECURITY AGREEMENT DATED AS OF APRIL 3, 2006
BETWEEN CIROND CORPORATION AND SAND HILL FINANCE, LLC
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement, dated as of April 3, 2006 (this "LOAN
AGREEMENT"), is entered by and between CIROND CORPORATION, a Nevada corporation
("BORROWER"), and SAND HILL FINANCE, LLC, a California limited liability company
("LENDER"). All capitalized terms used herein and not otherwise defined shall
have the meanings provided in SECTION 13 hereof.
The parties agree as follows:
1. THE LOAN.
1.1 ADVANCE. Subject to the terms and conditions of this Agreement,
Lender agrees to make one Advance to Borrower in an aggregate principal amount
of up to $1,000,000. Payments will be made in accordance with the Note, as
defined herein. Lender will disburse the Advance as follows: $500,000 to Account
No. 122 100 024 at Chase Bank on account of payroll obligations set forth in the
letter by Borrower to Lender of even date, and the balance to an account to be
opened at Square 1 Bank. Borrower shall use the proceeds of the money disbursed
to Chase Bank to pay payroll obligations of Servgate Technologies, Inc.
("Servgate") that Borrower assumed under a Foreclosure Sale Agreement of even
date (the "Foreclosure Agreement"), and the proceeds disbursed to Square 1 Bank
for working capital.
1.2 LENDER EXPENSES. Borrower will to pay to Lender, (i) on the Closing
Date, all reasonable costs or expenses (including reasonable attorneys' fees and
expenses) incurred in connection with the preparation of the Transaction
Documents through the Closing Date, and (ii) after the Closing Date, all costs
and expenses (including reasonable attorneys fees and expenses), as and when
they become due, incurred in connection with the preparation of the Transaction
Documents; reasonable Collateral audit fees; and Lender's reasonable attorneys'
fees and expenses incurred in amending, enforcing or defending the Transaction
Documents (including fees and expenses of appeal), incurred before, during and
after an Insolvency Event, whether or not suit is brought.
2. CLOSING.
2.1 CONDITIONS TO CLOSING. Before the funding of the Advance, the
following conditions shall have been satisfied by Borrower or waived in writing
by Lender:
(a) Lender shall have received the following, in form and
substance satisfactory to Lender:
(i) This Agreement;
(ii) A Promissory Note ("NOTE") in the form attached
hereto as EXHIBIT A, in the original principal
amount of One Million Dollars ($1,000,000);
(iii) Copies, certified by the Secretary of Borrower,
of: (A) the Articles of Incorporation and Bylaws of
Borrower (as amended to the date of this
Agreement), (B) the resolutions adopted by
Borrower's board of directors authorizing the
transactions contemplated hereby and the documents
being executed in connection therewith, and (C) the
incumbency of the officers executing this Agreement
and the other Transaction Documents on behalf of
Borrower;
(iv) A Warrant (the "WARRANT");
(v) Corporate Resolutions to Borrow;
(vii) An Intercreditor Agreement;
(ix) The Foreclosure Sale Agreement; and
(x) One or more account control agreements.
(b) No Event of Default has occurred.
(c) The representations and warranties contained in this
Agreement and the other Transaction Documents of Borrower shall be true and
correct as if made on the date of funding of the Advance and the Incremental
Advance.
(d) Borrower shall have provided to Lender such other documents,
instruments and agreements as Lender shall reasonably request.
3. GRANT OF SECURITY INTEREST. As security for all present and
future indebtedness, guarantees, liabilities, and other obligations of Borrower
to Lender under this Agreement and the other Transaction Documents or otherwise
(collectively, the "OBLIGATIONS"), Borrower grants Lender a security interest in
all of Borrower's personal property, whether now owned or hereafter acquired,
including without limitation all accounts, chattel paper, deposit accounts,
documents, equipment, general intangibles (including intellectual property,
patents, copyrights, trademarks, and goodwill), goods, fixtures, instruments,
inventory, financial assets, investment property, letter of credit rights,
money, and all of Debtor's books and records with respect to any of the
foregoing, and the computers and equipment containing said books and records;
and all products and proceeds thereof, as defined in this Agreement and the
Uniform Commercial Code (collectively, the "COLLATERAL"). Borrower will execute,
and authorizes Lender to execute on behalf of Borrower, such documents and take
such actions as Lender deems appropriate from time to time to perfect or
continue the security interest granted hereunder.
4. REPRESENTATIONS AND WARRANTIES. Borrower represents to Lender
on the date hereof and each date on which the Advance and the Incremental
Advance is requested, as follows: (a) Borrower is not in default under any
agreement under which Borrower owes any money, or any agreement, the violation
or termination of which could have a Material Adverse Effect; (b) Borrower has
taken all action and obtained all consents necessary to authorize the execution,
delivery and performance of the Transaction Documents; (c) Borrower has good
title to the Collateral and there are no liens, security interests or other
encumbrances on the Collateral other than the security interest granted to
Lender hereunder and Permitted Liens; (d) the execution and performance of the
Transaction Documents do not conflict with, or constitute a default under, any
agreement to which Borrower is party or by which Borrower is bound or a Legal
Requirement; (e) the information provided to Lender on or prior to the date of
the Advance and Incremental Advance is true and correct in all material
respects; (f) all financial statements and other information provided to Lender
fairly present Borrower's financial condition, and there has not been a material
adverse change in the financial condition of Borrower since the date of the most
recent of the financial statements submitted to Lender; (g) Borrower owns the
patents, copyrights or trademarks, or is a licensee thereof, necessary for the
operation of its business as currently conducted and as proposed to be
conducted; (h) Borrower is in compliance with all Legal Requirements; (i)
Borrower is not party to any litigation and is not the subject of any government
investigation, and Borrower has no knowledge of any pending litigation or
investigation or the existence of circumstances that reasonably could be
expected to give rise to such litigation or investigation; (j) Borrower does not
own any shares or other equity interests in any corporation, partnership,
limited liability company or other entity; (k) Borrower's inventory is in all
material respects of good and marketable quality, free from material defects,
except for inventory for which adequate reserves have been made in accordance
with GAAP, (l) all Collateral is in good operating condition and repair, subject
to ordinary wear and tear, and Borrower has made all economically reasonable and
necessary repairs thereto; (m) each account receivable represents 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 Borrower's business;, and (r) no representation or other
statement made by Borrower to Lender in any Transaction Document or any
certificate or instrument delivered by Borrower to Lender in connection herewith
contains any untrue statement of a material fact or omits to state a material
fact necessary to make any statements made to Lender not misleading.
5. AFFIRMATIVE COVENANTS.
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5.1 FINANCIAL INFORMATION. Borrower will provide Lender (i) as soon as
available, but in any event within 30 days after the last day of each month,
monthly company-prepared consolidated financial statements in form and substance
satisfactory to Lender, prepared in accordance with GAAP, (ii) as soon as
available, but in any event within 90 days after the last day of Borrower's
fiscal year, audited consolidated financial statements in form and substance
satisfactory to Lender, prepared in accordance with GAAP, together with an
unqualified opinion on such financial statements from an independent certified
public accounting firm acceptable to Lender, (iii) copies of all materials
provided to members of the Borrower's Board of Directors for meetings of the
Board of Directors at the same time that such materials are provided to the
members of the Borrower's Board of Directors, and (iv) promptly upon Lender's
request, such other information relating to Borrower's operations and condition
as Lender may reasonably request from time to time.
5.2 GOOD STANDINGS; EXISTENCE; COMPLIANCE WITH LAWS. Borrower and each
Subsidiary will maintain its corporate existence and good standing and will
maintain in force all licenses and agreements necessary or appropriate to the
conduct of its business. Borrower and each Subsidiary will pay all taxes on or
before the date such taxes are due, and will comply with all Legal Requirements.
5.3 BOARD SEATS. Borrower will take such actions as are necessary for
Scott Broomfield and Humphrey Polanen to become members of Borrower's Board of
Directors within seven days of the Closing Date.
5.4 INSPECTION AND AUDIT RIGHTS. Lender shall have (i) a right to visit
and inspect any of the properties of Borrower and its Subsidiaries, including a
right to examine and copy Borrower's and its Subsidiaries' books and records
from time to time upon reasonable notice to Borrower and (ii) to discuss its
affairs, finances and accounts with the Company's officers and its independent
public accountants, at such reasonable times and as often as Lender may
reasonably request. Lender may audit Borrower's Collateral at Borrower's
expense. Such audits will be conducted no more often than annually unless an
Event of Default has occurred and is continuing. Lender will give Borrower 10
days advance notice of such an audit, unless an Event of Default has occurred
and is continuing.
5.5 INSURANCE. Borrower will maintain insurance in a form acceptable to
Lender relating to the Collateral and Borrower's business in amounts and of a
type acceptable to Lender. Any insurance on the Collateral shall include a
lender's loss payable endorsement in favor of Lender as an additional loss
payee, and any liability insurance shall show Lender as an additional insured.
6. NEGATIVE COVENANTS. Borrower will not do any of the following:
6.1 INVESTMENTS. Make any investments in, or loans or advances to, any
Person other than in the ordinary course of business as currently conducted.
6.2 ACQUISITIONS; MERGERS. Acquire the stock or other equity interest
in, or any assets of, any Person other than in the ordinary course of business
as currently conducted, or enter into any merger or consolidation with any
Person.
6.3 DISTRIBUTIONS. Make any distributions or pay any dividends to any
Person on account of any equity ownership interest in Borrower or any
Subsidiary, or make any payment on account of or in redemption, retirement or
purchase of any capital stock of Borrower.
6.4 AFFILIATE TRANSACTIONS. Directly or indirectly enter into or permit
to exist any material transaction with any Affiliate of Borrower or any
Subsidiary, except for transactions in the ordinary course of business, upon
fair and reasonable terms that are no less favorable to Borrower than would be
obtained in an arms-length transaction with a non-affiliated Person,
6.5 TRANSFERS. Dispose of any interest in Borrower's or any
Subsidiary's assets, except for dispositions of inventory in the ordinary course
of business as currently conducted,
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6.6 SUBSIDIARIES. Create any direct or indirect subsidiary of
Borrower,
6.7 CORPORATE CHANGES. Except upon prior written notice to Lender,
change Borrower's or any Subsidiary's state of incorporation or name.
6.8 INDEBTEDNESS. Create, incur, assume or be liable for any
Indebtedness, other than Permitted Indebtedness.
6.9 LIENS; ENCUMBRANCES. Create, incur, or allow any Lien on any of
its property or assign or convey any right to receive income, except for
Permitted Liens.
6.10 SUBORDINATED DEBT. Make any payment on any Subordinated Debt,
except under the terms of the Subordinated Debt, or amend any provision in any
document relating to the Subordinated Debt.
7. EVENTS OF DEFAULT; REMEDIES.
7.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an "EVENT OF DEFAULT" under this Agreement: (a) Borrower's failure
(i) to pay all or any part of the principal or interest hereunder on the date
due and payable, or (ii) to comply with any agreement or covenant set forth in
this Agreement or any other Transaction Document, or (iii) to comply with the
terms of any material agreement to which Borrower is a party or by which it is
bound, or any agreement pursuant to which Borrower has incurred indebtedness (or
the occurrence of an Event of Default under any such agreement), or (iv) to
comply with any Legal Requirements; or (b) the occurrence of an Insolvency
Event; or (c) any representation made to Lender in this Agreement or any other
Transaction Document, or any information given to Lender by or on behalf of
Borrower, shall be incorrect in any material respect; or (d) any part of the
Collateral becomes subject to an attachment, lien, security interest or levy in
favor of any Person other than Lender, other than Permitted Liens; or (e) a
judgment or judgments for the payment of money shall be rendered against
Borrower and shall remain unsatisfied and unstayed for a period of ten (10)
days; or (f) the occurrence or existence of any circumstance that has or could
reasonably be expected to have a Material Adverse Effect.
7.2 REMEDIES. Upon the occurrence of an Event of Default, all unpaid
principal, accrued interest and other amounts owing hereunder shall, at the
option of Lender, be immediately due and payable and collectible by or on behalf
of Lender, and Lender may exercise all of the rights of a secured party under
the Uniform Commercial Code and any other applicable law. Lender may immediately
set off and apply to any obligation outstanding hereunder and under any other
Transaction Document any balances or deposits held by Lender or any indebtedness
at any time owing to or for the credit or the account of Borrower held by
Lender. Borrower shall assemble the Collateral in accordance with Lender's
directions, and Lender shall have a right at Borrower's sole expense to dispose
of all or any portion of the Collateral in the order and manner that Lender
elects, in its sole discretion, in any commercially reasonable manner. Lender
shall have a royalty-free license to use any name, trademark, or any property of
Borrower to complete production of, advertisement for, and disposition of any
Collateral and Lender shall have a license to enter into, occupy and use
Borrower's premises and the Collateral without charge to exercise any of
Lender's rights or remedies under this Agreement or under any other Transaction
Document. Borrower irrevocably appoints Lender (and any of Lender's designated
employees or agents) as Borrower's true and lawful attorney in fact to: endorse
Borrower's name on any checks or other forms of payment; make, settle and adjust
all claims under and decisions with respect to Borrower's policies of insurance;
settle and adjust disputes and claims respecting accounts receivable with
account debtors; execute and deliver all notices, instruments and agreements in
connection with the perfection of the security interest granted in this
Agreement or under any other Transaction Document; and sell, lease or otherwise
dispose of all or any part of the Collateral. The appointment of Lender as
Borrower's attorney in fact, and each of Lender's rights and powers, being
coupled with an interest, is irrevocable until all amount owing to Lender under
this Agreement and the other Transaction Documents have been repaid in full.
8. WAIVERS; INDEMNITY. Borrower waives notice of default, presentment and
demand for payment, notice of dishonor, protest and notice of protest under this
Agreement and any other Transaction Document. Borrower shall pay all costs of
collection and enforcement of this Agreement when incurred, including reasonable
attorneys' fees, costs and
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expenses incurred before, after or in connection with of an Insolvency Event.
Lender shall not in any case be liable for any loss of, or damage to, the
Collateral, the risk of which shall be borne by Borrower at all times. Borrower
shall indemnify and hold Lender harmless from any claim, obligation or liability
(including without limitation reasonable attorneys fees and expenses) arising
out of this Agreement or any other Transaction Document or the transactions
contemplated hereby or thereby, including any claim, obligation or liability
arising before, after or in connection with an Insolvency Event. The indemnity
obligation hereunder shall survive repayment of all Obligations and termination
of this Agreement until all applicable statute of limitation periods as to
actions that may be brought against Lender have run.
9. MAXIMUM LAWFUL RATE. On the Maturity Date or, if earlier, the date that
the Advance and all accrued interest thereon are paid in full, Lender will
compute the total amount of interest that has been contracted for, charged or
received by Lender or payable by Borrower hereunder and compare such amount to
the Maximum Lawful Amount that could have been contracted for, charged or
received by Lender. If such computation reflects that the total amount of
interest that has been contracted for, charged or received by Lender or payable
by Borrower exceeds the Maximum Lawful Amount, then Lender shall apply such
excess to the reduction of the principal balance, and any remaining excess shall
be refunded to Borrower. This provision concerning the crediting or refunding of
excess interest shall control and take precedence over all other agreements
between Borrower and Lender so that under no circumstance shall the total
interest contracted for, charged or received by Lender exceed the Maximum Lawful
Amount.
10. NOTICES. Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other Transaction
Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid)
shall be personally delivered or sent by a recognized overnight delivery
service, certified mail, postage prepaid, return receipt requested, or by
facsimile, to Borrower or to Lender, as the case may be, at its addresses set
forth below:
If to Borrower: CIROND CORPORATION
4185 Still Creek Drive, Suite B101
Burnaby, BC V5C 6G9, Canada.
Attn: __________________
Fax 604-205-3984
If to Lender: SAND HILL FINANCE, LLC
20573 Stevens Creek Blvd., Suite 200
Cupertino, CA 95014
Attention: Ron Ernst
Fax: (408) 447-8535
The parties hereto may change the address at which they are to receive notices
hereunder, by notice in writing in the foregoing manner given to the other.
11. JURY WAIVER; JUDICIAL REFERENCE. LENDER AND BORROWER WAIVE ANY RIGHT
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT,
THE TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR
THEREIN, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES
AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO
ENTER INTO THIS AGREEMENT. IF THIS JURY WAIVER IS FOR ANY REASON UNENFORCEABLE,
THE PARTIES AGREE TO RESOLVE ALL CLAIMS, CAUSES AND DISPUTES BY A JUDGE ACTING
AS REFEREE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638.
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12. MISCELLANEOUS. Lender may assign all or any part of its interest in
this Agreement or the Advance to any Person, or grant a participation of any
interest in this Agreement, without notice to, or the consent of, Borrower. This
Agreement can be amended only by an instrument signed by Lender and Borrower.
All prior agreements, understandings and negotiations are superseded by this
Agreement. Borrower may not assign any obligation hereunder without Lender's
consent, which may be granted or withheld in Lender's sole discretion. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one instrument. Each
provision of this Agreement shall be severable from every other provision of
this Agreement for the purpose of determining the legal enforceability of any
specific provision. All covenants, representations and warrants made in this
Agreement shall continue in full force and effect so long as any obligations
hereunder remain outstanding. This Agreement shall be governed by the internal
laws of the State of California, without regard to conflicts of laws rules.
Borrower and Lender consent to the jurisdiction of the United States District
Court of the Northern District of California and the state courts for Santa
Clara, California.
13. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, any Person that owns or
controls directly or indirectly such Person, any Person that controls or is
controlled by or is under common control with such Person, and each of such
Person's senior executive officers and directors.
"CLOSING DATE" means the date of this Agreement.
"CONTINGENT OBLIGATIONS" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of that Person with respect to (i)
any indebtedness, lease, dividend, letter of credit or other obligation of
another, including, without limitation, any such obligation directly or
indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by
that Person, or in respect of which that Person is otherwise directly or
indirectly liable; (ii) any obligations with respect to undrawn letters of
credit, corporate credit cards, or merchant services issued for the account of
that Person; and (iii) all obligations arising under any interest rate, currency
or commodity swap agreement, interest rate cap agreement, interest rate collar
agreement, or other agreement or arrangement designated to protect a Person
against fluctuation in interest rates, currency exchange rates or commodity
prices; provided, however, that the term "Contingent Obligation" shall not
include endorsements for collection or deposit in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determined amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith; provided, however, that such amount
shall not in any event exceed the maximum amount of the obligations under the
guarantee or other support arrangement.
"COPYRIGHTS" means any and all copyright rights, copyright
applications, copyright registrations and like protections in each work or
authorship and derivative work thereof, whether published or unpublished and
whether or not the same also constitutes a trade secret, now or hereafter
existing, created, acquired or held.
"EVENT OF DEFAULT" shall have the meaning given to such term in Section
7.
"FORECLOSURE SALE AGREEMENT" means the Foreclosure Sale Agreement of
even date among Borrower, Servgate, Sand Hill Finance, LLC and BSGL, LLC.
"GAAP" is generally accepted accounting principles in effect in the
United States.
"GOVERNMENTAL AUTHORITY" means any federal, state, provincial,
municipal and foreign governmental entity, authority, or agency or any other
political subdivision, or any entity exercising executive, legislative judicial,
regulatory or administrative functions of government.
"INDEBTEDNESS" means (a) all indebtedness for borrowed money or the
deferred purchase price of property or services, including without limitation
reimbursement and other obligations with respect to surety bonds and letters of
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credit, (b) all obligations evidenced by notes, bonds, debentures or similar
instruments, (c) all capital lease obligations, and (d) all Contingent
Obligations.
"INSOLVENCY EVENT" means Borrower's becoming insolvent, or becoming the
subject of any case or proceeding under the United States Bankruptcy Code or any
other law relating to the reorganization or restructuring of debt, or if any of
Borrower's assets is attached or becomes subject to levy or judicial proceeding
"INTELLECTUAL PROPERTY COLLATERAL" means all of Borrower's right,
title, and interest in and to Copyrights, Trademarks and Patents, trade secrets,
design rights, claims for damages relating to the foregoing, licenses or other
rights to use any of the foregoing, and all amendments, renewals and extensions
of any of the foregoing.
"LEGAL REQUIREMENT" means any statute, ordinance, code, law, rule,
regulation, order or other requirement, standard, procedure enacted, adopted or
applied by any Governmental Authority, including, decisions, orders, writs,
awards, or injunctions of an arbitrator or a court or other Governmental
Authority.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business operations, condition (financial or otherwise) or prospects of
Borrower, (ii) the ability of Borrower to repay the Obligations or otherwise
perform its obligations under the Transaction Documents, or (iii) Borrower's
interest in, or the value, perfection or priority of Lender's security interest
in the Collateral.
"MATURITY DATE" has the meaning assigned in the Note.
"MAXIMUM LAWFUL AMOUNT" means the maximum amount of interest that is
permissible under applicable state or federal laws for the type of loan
evidenced by the Transaction Documents.
"PATENTS" means all patents, patent applications and like protections
including without limitation improvements, divisions, continuations, renewals,
reissues, extensions and continuations-in-part of the same.
"PERMITTED INDEBTEDNESS" means:
(a) Indebtedness of Borrower in favor of Lender arising under
this Agreement or any other Transaction Document;
(b) Indebtedness owed by Borrower from time to time under the
Foreclosure Sale Agreement and the SHF Finance Documents, the BSGL Loan
Documents, as defined in the Foreclosure Sale Agreement, and the promissory
notes issued by Borrower to Sand Hill Finance, LLC and BSGL, LLC, as specified
under the Foreclosure Sale Agreement; and
(c) Indebtedness to trade creditors incurred in the ordinary
course of business.
"PERMITTED LIENS" means:
(a) Any liens (i) existing on the Closing Date and disclosed
in writing to Lender on or before the Closing Date (excluding liens to be
satisfied with the proceeds of the Advance) or (ii) arising under this Agreement
or the other Transaction Documents;
(b) Liens for taxes, fees, assessments or other governmental
charges or levies, either not delinquent or being contested in good faith by
appropriate proceedings and for which Borrower maintains adequate reserves,
provided the same have no priority over any of Lender's security interests;
(c) Purchase money liens (i) on equipment and software
acquired or held by Borrower incurred for financing the acquisition of the
equipment and software, or (ii) existing on equipment when acquired, if the lien
is confined to the property and improvements and the proceeds of the equipment
and software;
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(d) Liens securing the Indebtedness referred to in clause (b)
of "Permitted Indebtedness";
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under SECTION 7; and
(f) Liens in favor of other financial institutions arising in
connection with Borrower's deposit accounts held at such institutions to secured
standard fees for deposit services charged by, but not financing made available
by such institutions, provided that Lender has a perfected security interest in
the amounts held in such deposit accounts.
"PERSON" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or governmental agency.
"SUBORDINATED DEBT" means any debt incurred by Borrower that is
subordinated in writing to the debt owing by Borrower to Lender on terms
acceptable to Lender.
"TRADEMARKS" means any trademark and servicemark rights, whether
registered or not, applications to register and registrations of the same and
like protections, and the entire goodwill of the business of Borrower connected
with and symbolized by such trademarks.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the state of California.
[Signature page follows.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the first day above written.
BORROWER: LENDER:
CIROND CORPORATION SAND HILL FINANCE, LLC
By: /s/ NICHOLAS R. MILLER By:
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Name: Nicholas R. Miller Name:
---------------------------- ---------------------------------
Title: C.E.O. Title:
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