SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This Second Amendment to Amended and Restated Loan and Security Agreement (this "Amendment") is entered into as of March 28, 2003, by and between COMERICA BANK-CALIFORNIA ("Bank")...
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Second Amendment to Amended and Restated Loan and Security Agreement (this
"Amendment") is
entered into as of March 28, 2003, by and between COMERICA BANK-CALIFORNIA
("Bank") and CHORDIANT
SOFTWARE, INC. ("Borrower").
RECITALS
Borrower and Bank are parties to that certain Amended and Restated Loan and
Security Agreement dated
as of August 16, 2000, as amended (the "Agreement"). The parties desire to amend
the Agreement in
accordance
with the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The following defined terms in Section 1.1 of the Agreement are hereby
amended to read as
follows:
"Committed Revolving Line" means a credit extension of up to Five Million
Dollars
($5,000,000).
"Current Liabilities" means, as of any applicable date, all amounts that should,
in accordance
with GAAP, be included as current liabilities on the consolidated balance sheet
of Borrower and its
Subsidiaries, as at such date, plus, to the extent not already included therein,
all Obligations under
this
Agreement, and including all Indebtedness that is payable upon demand or within
one year from the date
of determination thereof unless such Indebtedness is renewable or extendible at
the option of Borrower or
any Subsidiary to a date more than one year from the date of determination.
"Equipment Line" means a credit extension of up to Two Million Five Hundred
Thousand
Dollars ($2,500,000).
"Equipment Maturity Date" means March 27, 2006.
"Revolving Maturity Date" means March 27, 2005.
2. Section 2.1(a)(i) of the Agreement is amended by deleting the phrase "Three
Million Dollars
($3,000,000) where it appears in the fifth (5th) and eighth (8th) lines thereof,
and replacing it with
"Two MillionDollars ($2,000,000)."
3. Subsections (i) and (ii) of Section 2.1(b) of the Agreement are amended to
read as follows:
(b) Equipment Advances.
(i) Subject to and upon the terms and conditions of this Agreement, at any time
from the date hereof through March 27, 2004 (the "Equipment Availability End
Date"), Bank agrees to
make advances (each an "Equipment Advance" and, collectively, the "Equipment
Advances") to Borrower
in an aggregate outstanding amount not to exceed the Equipment Line. Each
Equipment Advance shall
not exceed one hundred percent (100%) of the invoice amount of equipment,
furniture and software
approved by Bank from time to time (which Borrower shall, in any case, have
purchased within 90 days of
the date of the corresponding Equipment Advance), excluding taxes, shipping,
warranty charges, freight
discounts, soft costs, and installation expense; provided, that Borrower may
request a single Equipment
Advance on or about March 28, 2003 (the "Initial Equipment Advance") which may
be used to refinance
existing equipment, furniture and software approved by Bank. The foregoing
notwithstanding, not more
than 25% of the aggregate Equipment Advances may be used to finance software.
(ii) Interest shall accrue from the date of each Equipment Advance at the rate
specified in Section 2.3(a), and shall be payable monthly on the first (1st)
calendar day of each month
(the
"Payment Date"). The Initial Equipment Advance shall be payable in thirty (30)
equal monthly
installments of principal, plus all accrued interest, beginning on the Payment
Date of the month
immediately following the Initial Equipment Advance, and continuing on the same
day of each month
thereafter until paid. Any subsequent Equipment Advances (except for Equipment
Advances used to
finance software) that are outstanding on September 27, 2003 (the "First Term
Date") shall be payable in
thirty (30) equal monthly installments of principal, plus all accrued interest,
beginning on the Payment
Date of the month immediately following the First Term Date, and continuing on
the same day of each
month thereafter through the Equipment Maturity Date. Any Equipment Advances
used to finance
software that are outstanding on the First Term Date shall be payable in
twenty-four (24) equal monthly
installments of principal, plus all accrued interest, beginning on the Payment
Date of the month
immediately following the First Term Date, and continuing on the same day of
each month thereafter
until paid. Any Equipment Advances (except for Equipment Advances used to
finance software) drawn
after the First Term Date that are outstanding on the Equipment Availability End
Date shall be payable in
twenty-four (24) equal monthly installments of principal, plus all accrued
interest, beginning on the
Payment Date of the month immediately following the Equipment Availability End
Date, and continuing
on the same day of each month thereafter through the Equipment Maturity Date.
Any Equipment
Advances used to finance software drawn after the First Term Date that are
outstanding on the Equipment
Availability End Date shall be payable in eighteen (18) equal monthly
installments of principal, plus all
accrued interest, beginning on the Payment Date of the month immediately
following the Equipment
Availability End Date, and continuing on the same day of each month thereafter
until paid. All unpaid
amounts due under this Section 2.1(b) and any other amounts due under this
Agreement (except as
otherwise expressly specified herein) shall be immediately due and payable on
the Equipment Maturity
Date. Equipment Advances, once repaid, may not be reborrowed. Borrower may
prepay any Equipment
Advances without penalty or premium.
4. The first sentence of Section 2.1(c)(i) of the Agreement is amended by
deleting the phrase "Four
Million Dollars ($4,000,000) where it appears in the third (3rd) line thereof,
and replacing it with "Two
Million
Dollars ($2,000,000)."
5. Section 2.1(d) of the Agreement is amended to read as follows:
(d) Foreign Exchange Sublimit. If there is availability under the Committed Revolving Line, Borrower may enter in foreign exchange forward contracts with the Bank under which Borrower commits to purchase from or sell to Bank a set amount of foreign currency more than one business day after the contract date (the "FX Forward Contract"). Bank will subtract 10% of each outstanding FX Forward Contract from the foreign exchange sublimit which is a maximum of $2,000,000 (the "FX Sublimit"). Such subtracted amount shall be deducted from availability under the Committed Revolving Line for other Credit Extensions. The total FX Forward Contracts at any one time may not exceed $25,000,000. Bank may terminate the FX Forward Contracts if an Event of Default occurs.
6. Section 2.2 of the Agreement is amended to read as follows:
2.2 Overadvances. If at any time or for any reason the aggregate amount of the
outstanding
Advances plus the aggregate face amount of all outstanding Letters of Credit
plus the aggregate amount
outstanding in respect of the FX Sublimit exceeds the lesser of (a) the
Committed Revolving Line, or (b)
the greater of (i) Two Million Dollars ($2,000,000) or (ii) the Borrowing Base,
Borrower shall
immediately pay to Bank, in cash, the amount of such excess.
7. Subsections (i) and (ii) of Section 2.3(a) of the Agreement are amended to
read as follows:
(a) Interest Rates.
(i) Advances. Except as set forth in Section 2.3(b), any Advances shall
bear interest, on the outstanding daily balance thereof, at a rate equal to the
Prime Rate plus one-half
percent (0.50%).
(ii) Equipment Advances. Except as set forth in Section 2.3(b), the
Equipment Advances shall bear interest, on the outstanding daily balance
thereof, at a rate equal to the
Prime Rate plus one percent (1.0%).
8. Borrower shall not request or receive LIBOR Rate Advances.
9. The second paragraph of Section 6.3 of the Agreement is amended by deleting
the phrase "Three
Million Dollars ($3,000,000)" where it appears in the second (2nd) line thereof,
and replacing it with
"Two
Million Dollars ($2,000,000)."
10. The last paragraph of Section 6.3 of the Agreement is amended to read as
follows:
Bank shall have a right within sixty (60) days after March 28, 2003, and from
time to time
thereafter, to audit Borrower's Accounts and appraise Collateral at Borrower's
expense, the results of
which shall be satisfactory to Bank, provided that such audits will be conducted
no more often than every
twelve (12) months unless an Event of Default has occurred and is continuing;
provided, however, that if
Advances under the Committed Revolving Line, including Letters of Credit and
availability used under
the Committed Revolving Line for FX Forward Contracts, exceed Two Million
Dollars ($2,000,000), then
such audits may be conducted no more often than every six (6) months unless an
Event of Default has
occurred and is continuing.
11. Section 6.8 of the Agreement is amended to read as follows:
6.8 Quick Ratio. Borrower shall maintain, as of the last day of each fiscal
quarter of
Borrower, or, in the event Borrower's aggregate balance of unrestricted cash and
cash equivalents ever
falls below $25,000,000, as of the last day of each calendar month, a ratio of
Quick Assets to Current
Liabilities, less non-refundable and deferred maintenance revenue, of at least
2.0 to 1.0.
12. Section 6.9 of the Agreement is amended to read as follows:
6.9 Tangible Net Worth. Borrower shall maintain, as of the last day of each
fiscal quarter,
or, in the event Borrower's aggregate balance of unrestricted cash and cash
equivalents ever falls below
$25,000,000, as of the last day of each calendar month, a Tangible Net Worth of
not less than Fifteen
Million Dollars ($15,000,000) plus sixty percent (60%) of any New Equity.
13. Section 6.12 of the Agreement is amended to read as follows:
6.12 Revenue. For each fiscal quarter of Borrower beginning with the quarter
ending March
31, 2003, Borrower shall achieve quarterly revenue of at least seventy-five
percent (75%) of the
projected
revenue for such period as set forth in Borrower's projections delivered to Bank
and attached hereto as
Exhibit E.
14. A new Section 6.13 is added to the Agreement, which shall read as follows:
6.13 Cash Maintained at Bank. Borrower shall maintain at all times at least Five
Million
Dollars ($5,000,000) in one or more depository or operating accounts with Bank.
15. Exhibit A is deleted and replaced with Exhibit A attached hereto.
16. Exhibit D is deleted and replaced with Exhibit D attached hereto.
17. Exhibit E shall be in the form of Exhibit E attached hereto.
18. Upon execution of this Amendment and on each anniversary date of this
Amendment until the
Revolving Maturity Date, Borrower shall pay to Bank a non-refundable fee for the
Committed Revolving Line
in
the amount of $12,500. Upon execution of this Amendment, Borrower shall pay to
Bank a non-refundable fee
for
the Equipment Line in the amount of $6,250.
19. All references in the Loan Documents to "Imperial Bank" shall mean and refer to "Comerica Bank-California." Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all promissory notes, guaranties, security agreements, mortgages, deeds of trust, environmental agreements, and all other instruments, documents and agreements entered into in connection with the Agreement.
20. Borrower represents and warrants that the representations and warranties
contained in the
Agreement are true and correct as of the date of this Amendment, and that no
Event of Default has
occurred and is
continuing.
21. This Amendment may be executed in two or more counterparts, each of which
shall be deemed
an original, but all of which together shall constitute one instrument.
22. As a condition to the effectiveness of this Amendment, Bank shall have
received, in form and
substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by Borrower;
(b) Corporate Resolutions to Borrow;
(c) Payment of the fees then due specified in Section 18 hereof, plus all Bank
Expenses incurred through the date of this Amendment;
(d) A negative pledge agreement covering intellectual property; and
(e) such other documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above
written.
CHORDIANT SOFTWARE, INC.
By: /s/ Xxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
COMERICA BANK-CALIFORNIA
By: /s/ Xxxxx Xxxxxx
Title: First Vice President and Manager
DEBTOR CHORDIANT SOFTWARE, INC.
SECURED PARTY: COMERICA BANK-CALIFORNIA
EXHIBIT A
COLLATERAL DESCRIPTION ATTACHMENT
TO LOAN AND SECURITY AGREEMENT
All personal property of Borrower (herein referred to as "Borrower" or "Debtor") whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to:
(a) all accounts (including health-care-insurance receivables), chattel paper
(including
tangible and electronic chattel paper), deposit accounts, documents (including
negotiable documents),
equipment
(including all accessions and additions thereto), general intangibles (including
payment intangibles and
software),
goods (including fixtures), instruments (including promissory notes), inventory
(including all goods held
for sale
or lease or to be furnished under a contract of service, and including returns
and repossessions),
investment
property (including securities and securities entitlements), 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;
(b) all common law and statutory copyrights and copyright registrations,
applications for
registration, now existing or hereafter arising, in the United States of America
or in any foreign
jurisdiction,
obtained or to be obtained on or in connection with any of the forgoing, or any
parts thereof or any
underlying or
component elements of any of the forgoing, together with the right to copyright
and all rights to renew
or extend
such copyrights and the right (but not the obligation) of Secured Party to xxx
in its own name and/or in
the name of
the Debtor for past, present and future infringements of copyright;
(c) all trademarks, service marks, trade names and service names and the
goodwill
associated therewith, together with the right to trademark and all rights to
renew or extend such
trademarks and
the right (but not the obligation) of Secured Party to xxx in its own name
and/or in the name of the
Debtor for past,
present and future infringements of trademark;
(d) all (i) patents and patent applications filed in the United States Patent
and Trademark
Office or any similar office of any foreign jurisdiction, and interests under
patent license agreements,
including,
without limitation, the inventions and improvements described and claimed
therein, (ii) licenses
pertaining to any
patent whether Debtor is licensor or licensee, (iii) income, royalties, damages,
payments, accounts and
accounts
receivable now or hereafter due and/or payable under and with respect thereto,
including, without
limitation,
damages and payments for past, present or future infringements thereof, (iv)
right (but not the
obligation) to xxx in
the name of Debtor and/or in the name of Secured Party for past, present and
future infringements
thereof,
(v) rights corresponding thereto throughout the world in all jurisdictions in
which such patents have
been issued or
applied for, and (vi) reissues, divisions, continuations, renewals, extensions
and continuations-in-part
with respect
to any of the foregoing; and
(e) any and all cash proceeds and/or noncash proceeds of any of the foregoing,
including,
without limitation, insurance proceeds, and all supporting obligations and the
security therefore or for
any right to
payment. All terms above have the meanings given to them in the California
Uniform Commercial Code, as
amended or supplemented from time to time, including revised Division 9 of the
Uniform Commercial Code-Secured Transactions, added by Stats. 1999, c.991 (S.B. 45), Section 35,
operative July 1, 2001.
Notwithstanding the foregoing, the Collateral shall not include any copyrights,
patents,
trademarks, servicemarks and applications therefore, now owned or hereafter
acquired, or any claims for damages
by way of any past, present and future infringement of any of the foregoing
(collectively, the
"Intellectual
Property"); provided, however, that the Collateral shall include all accounts
and general intangibles
that consist of
rights to payment and proceeds from the sale, licensing or disposition of all or
any part, or rights in,
the foregoing (the "Rights to Payment"). Notwithstanding the foregoing, if a judicial
authority (including a U.S.
Bankruptcy
Court) holds that a security interest in the underlying Intellectual Property is
necessary to have a
security interest in
the Rights to Payment, then the Collateral shall automatically, and effective as
of the Closing Date,
include the
Intellectual Property to the extent necessary to permit perfection of Bank's
security interest in the
Rights to
Payment.
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of March 28, 2003, by and between
COMERICA BANKCALIFORNIA
("Bank"), and CHORDIANT SOFTWARE, INC. ("Borrower").
In connection with that certain Amended and Restated Loan and Security Agreement
dated as of August 16,
2000 between Borrower and Bank, as amended including, without limitation, by
that certain Second
Amendment to
Amended and Restated Loan and Security Agreement dated as of the date hereof
(collectively, the "Loan
Agreement")
and the other related documents being concurrently executed between Borrower and
Bank in connection
therewith,
Borrower hereby agrees as follows:
1. Except as permitted in the Loan Agreement, Borrower shall not sell, transfer,
assign, mortgage,
pledge,
lease, grant a security interest in, or encumber, or enter into any agreement, document, instrument or
other arrangement
(except with or in favor of Bank) with any person which directly or indirectly
prohibits or has the
effect of prohibiting
Borrower from selling, transferring, assigning, mortgaging, pledging, leasing,
granting a security
interest in or upon, or encumbering any of Borrower's intellectual property, including, without
limitation, the following:
a. Any and all copyright rights, copyright applications, copyright registrations
and like
protection 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
(collectively, the"Copyrights");
b. Any and all trade secrets, and any and all intellectual property rights in
computer software and
computer software products now or hereafter existing, created, acquired or held;
c. Any and all design rights which may be available to Borrower now or hereafter
existing,
created, acquired or held;
d. All patents, patent applications and like protections, including, without
limitation,
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the
same, including,
without limitation, the patents and patent applications (collectively, the
"Patents");
e. 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 (collectively, the "Trademarks");
f. Any and all claims for damages by way of past, present and future
infringements of any of therights included above, with the right, but not the obligation, to xxx for and
collect such damages for
said use or
infringement of the intellectual property rights identified above;
g. All licenses or other rights to use any of the Copyrights, Patents or
Trademarks and all license
fees and royalties arising from such use to the extent permitted by such license
or rights;
h. All amendments, extensions, renewals and extensions of any of the Copyrights,
Patents or
Trademarks; and
i. All proceeds and products of the foregoing, including, without limitation,
all payments under
insurance or any indemnity or warranty payable in respect of any of the
foregoing.
2. Borrower covenants and agrees that it will not agree with any Person other
than Bank not to grant a
security interest in, or otherwise encumber, any of its property, or permit any
Subsidiary to do so.
3. It shall be an Event of Default under the Loan Documents between Borrower and
Bank if there is a
breach of any term of this Negative Pledge Agreement.
4. Capitalized items used herein without definition shall have the same meanings
as set forth in the Loan
and Security Agreement of even date herewith. This Agreement may be executed in
two or more counterparts,
each of
which shall be deemed an original, but all of which together shall constitute
the same instrument.
CHORDIANT SOFTWARE, INC.
By: /S/ Xxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
COMERICA BANK-CALIFORNIA
By: /s/ Xxxxx Xxxxxx
Title: First Vice President and Manager
