Exhibit 10.3
POST CLOSING MATTERS AGREEMENT
THIS POST CLOSING MATTERS AGREEMENT (this "AGREEMENT") is
dated as of June 12, 2002 and is executed and delivered by PEREGRINE SYSTEMS,
INC., a Delaware corporation ("Parent"), and each of Parent's Subsidiaries
identified on the signature pages hereof (Parent and such Subsidiaries are
referred to hereinafter each individually as a "BORROWER", and individually and
collectively, jointly and severally, as the "BORROWERS"), and FOOTHILL CAPITAL
CORPORATION, a California corporation in its capacity as Agent on behalf of the
Lenders (in such capacity, together with its successors and assigns in such
capacity, "AGENT") under that certain Loan and Security Agreement dated as of
June 12, 2002 (the "LOAN AGREEMENT") by and among Borrowers, Agent and the
Lenders from time to time a party thereto. All capitalized terms used but not
otherwise defined herein shall have the meanings ascribed thereto in the Loan
Agreement.
Reference is made to that certain Revolving Credit Agreement
dated as of October 29, 2001, by and among Parent, Existing Lender, and the
other lending institutions from time to time a party thereto (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"EXISTING CREDIT AGREEMENT").
In consideration of the Advances, the Term Loan and additional
extensions of credit to be made by Agent and the Lenders as of and after the
date hereof in accordance with the terms of the Loan Agreement and the other
documents and agreements contemplated thereby, and as an inducement to Agent and
the Lenders to make such Advances, such Term Loan and to extend such credit,
each Borrower agrees with Agent as follows:
1. REQUIRED ACTIONS. The delivery of the documents set
forth on SCHEDULE A hereto and/or the taking of the actions set forth therein is
waived by Agent as a condition precedent to the making of the initial Advance,
the Term Loan or to otherwise extend credit under the Loan Agreement (to the
extent set forth in SECTION 3.1 thereof); PROVIDED, HOWEVER, that in addition to
the satisfaction of the conditions subsequent set forth in SECTION 3.2 of the
Loan Agreement, Borrowers shall deliver to Agent such documents and/or take such
actions in the manner, and within the respective periods, set forth in SCHEDULE
A hereto. If Borrowers shall fail to comply in any respect with such
requirements, each Borrower agrees that any such failure shall immediately
constitute an Event of Default under the Loan Agreement.
2. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon and inure to the benefit of the parties hereto, the Lender
Group, and their respective successors and assigns.
3. SEVERABILITY. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Agreement.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED UNDER AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS, AS OPPOSED
TO THE CONFLICT OF LAWS PROVISIONS, OF THE STATE OF NEW YORK.
5. NO WAIVER. The waivers and consents contained in this
Agreement are limited to the specifics hereof, shall not apply with respect to
any facts or occurrences other than those on which the same are based, shall not
excuse future non-compliance with the Loan Agreement or any other Loan Document,
and, except as expressly set forth herein, shall not operate as a waiver or an
amendment of any right, power or remedy of the Agent or the Lender Group, nor as
a consent to any further or other matter, under the Loan Documents. No waiver,
and no modification or amendment of any provision of this Agreement shall be
effective unless specifically made in writing and duly signed by the party
purportedly making such waiver.
6. COUNTERPARTS. This Agreement may be delivered by
facsimile and executed in one or more counterparts and by different parties in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all of which counterparts taken together shall
constitute but one and the same Agreement.
7. TITLES. Paragraph and subparagraph titles, captions
and headings herein are inserted only as a mater of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provisions hereof.
8. ACKNOWLEDGMENT. Each Borrower affirms and
acknowledges that this Agreement constitutes a Loan Document under the Loan
Agreement and any reference to the Loan Documents under the Loan Agreement
contained in any notice, request, certificate or other document executed
concurrently with or after the execution and delivery of this Agreement shall be
deemed to include this Agreement unless the context shall otherwise specify.
[Balance of page Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned have executed and
delivered this Agreement as of the date first written above.
PEREGRINE SYSTEMS, INC.,
a Delaware corporation
By:
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Name:
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Title:
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PEREGRINE REMEDY, INC.,
a Delaware corporation
By:
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Name:
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Title:
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HARBINGER HOLDINGS, INC.,
a California corporation
By:
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Name:
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Title:
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PEREGRINE E-MARKETS, INC.,
a Delaware corporation
By:
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Name:
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Title:
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TELCO RESEARCH CORPORATION,
a Tennessee corporation
By:
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Name:
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Title:
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PEREGRINE CONNECTIVITY, INC.,
a Georgia corporation
By:
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Name:
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Title:
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PEREGRINE DIAMOND, INC.,
a Delaware corporation
By:
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Name:
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Title:
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PEREGRINE CALIFORNIA PADRES, INC.,
a Delaware corporation
By:
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Name:
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Title:
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PEREGRINE ONTARIO BLUE JAYS, INC.,
a Delaware corporation
By:
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Name:
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Title:
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BALLGAME ACQUISITION CORPORATION,
a Delaware corporation
By:
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Name:
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Title:
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OCTOBER ACQUISITION CORPORATION,
a Delaware corporation
By:
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Name:
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Title:
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PEREGRINE BODHA, INC.,
a Delaware corporation
By:
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Name:
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Title:
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PEREGRINE FEDERAL SYSTEMS, INC.,
an Illinois corporation
By:
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Name:
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Title:
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XXXXX NETWORK SYSTEMS, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
By:
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Name:
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Title:
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SCHEDULE A
1. Within 1 Business Day of the Closing Date, Agent
shall have received irrevocable escrow instructions from Parent to Brambles NSD,
Inc. which are in form and substance reasonably satisfactory to Agent, have been
duly executed and delivered by Borrower, and are in full force and effect.
2. Within 2 Business Day of the Closing Date, Agent
shall have received either (a) a letter agreement by and between Agent and
Existing Lender, which provides (among other things) that (i) Existing Lender
consents to the consummation of the transactions contemplated by the Loan
Agreement, (ii) Existing Lender waives any default of event of default existing
under the Existing Credit Agreement (including without limitation any default or
event of default under such credit agreement that would otherwise occur as a
result of the consummation of the transactions contemplated by the Loan
Agreement), (iii) Existing Lender shall not advance any additional funds to any
Borrower, nor shall it issue any other letters of credit or extend any other
financial accommodations for the benefit of any Borrower, whether under the
Existing Credit Agreement or otherwise, and (iv) Existing Lender shall not act
as the agent with respect to any loan, advance, or any other financial
accommodation extended by any Person for the benefit of any Borrower, whether
under the Existing Credit Agreement or otherwise, which letter agreement is in
form and substance satisfactory to Agent, has been duly executed and delivered
by Existing Lender, and is in full force and effect, or (b) the documents
described in paragraph 3(a) of this Schedule A.
3. Within 5 Business Days of the Closing Date, Agent
shall have received each of the following documents, in form and substance
satisfactory to Agent, duly executed, and each such document shall be in full
force and effect:
(a) the Pay-Off Letter, together with UCC
termination statements and other documentation evidencing the termination by
Existing Lender of its Liens in and to the properties and assets of Borrowers,
(b) the Canadian Guaranty, and
(c) With respect to the Stock certificates held
by Existing Lender, certificates representing 100% of the shares of Stock of
Parent's Domestic Subsidiaries (other than ExchangeBridge, Inc.) and Canadian
Obligors, 78% of the shares of the Stock of ExchangeBridge, Inc., and 65% of the
shares of Stock of Borrowers' direct Subsidiaries that are CFCs, in each case
with respect to Stock which is evidenced by a certificate as of the Closing
Date, as well as stock powers with respect thereto endorsed in blank.
4. Within 5 Business Days of the Closing Date, Agent
shall have received completed schedules to the Stock Pledge Agreement, which are
in form and substance satisfactory to Agent in its discretion.
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5. Within 5 Business Days of the Closing Date, Agent
shall have received such evidence as Agent shall require in its discretion that
each of the Canadian Conditions shall have been satisfied.
6. Within 5 Business Days of the Closing Date, Agent
shall have received (a) the applications for registration of not less than the
Closing Date Required Library of all existing copyrights of the Obligors, and
(b) completed schedules to the Trademark Security Agreements and the Copyright
Security Agreements which are in form and substance satisfactory to Agent in its
discretion.
7. Within 5 Business Days of the Closing Date, Agent
shall have received satisfactory evidence that Borrowers have established one or
more operating accounts separate from their existing deposit accounts into which
they receive the proceeds of their Accounts and other rights to payment.
8. Within 10 Business Days of the Closing Date, Agent
shall have received (a) the Cash Management Agreements, and (b) such Control
Agreements as Agent shall require in its discretion, each of which are in form
and substance satisfactory to Agent in its discretion.
9. Within 10 Business Days of the Closing Date, Agent
shall have received satisfactory evidence that all delinquent amounts (of
approximately $3,300,000) owed to Borrower's lessors of its locations situate in
San Diego, California (but only as to the leases for the three buildings
currently occupied by Parent or any Borrower), Atlanta, Georgia, and Mountain
View, California (but only as to the leases for the facilities currently
occupied by Peregrine Remedy, Inc.), have been (or with the application of the
proceeds of the Term Loan will be) paid.
10. Within 10 Business Days of the Closing Date, Agent
shall have received Collateral Access Agreements with respect to the following
locations: San Diego, California (but only as to the leases for the three
buildings currently occupied by Parent or any Borrower), Atlanta, Georgia, and
Mountain View, California (but only as to the leases for the facilities
currently occupied by Peregrine Remedy, Inc.).
11. Within 10 Business Days of the Closing Date, Agent
shall have received (i) a certificate from the Secretary of Xxxxx Network
Systems, LLC, a Delaware limited liability company ("Xxxxx"), attesting to the
resolutions of Loran's Board of Directors authorizing its execution, delivery,
and performance of the Loan Agreement and the other Loan Documents to which
Xxxxx is a party and authorizing specific officers of Xxxxx to execute the same,
and (ii) copies of Loran's Governing Documents, as amended, modified, or
supplemented to the Closing Date, certified by the Secretary of Xxxxx.
12. Within 10 Business Days of the Closing Date, Agent
shall have received completed schedules to the Patent Security Agreements, which
are in form and substance satisfactory to Agent in its discretion.
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13. Within 30 days of the Closing Date, Agent shall have
received opinions of Obligors' counsel in form and substance reasonably
satisfactory to Agent.
14. Within 30 days of the Closing Date, Agent shall have
received the revised Disclosure Letter with all schedules referenced in the Loan
Agreement, which is complete and is in form and substance reasonably
satisfactory to Agent in its Permitted Discretion.
15. Within 30 days of the Closing Date, Agent shall have
received (a) all Stock certificates of Parent and its Subsidiaries not held by
Existing Lender, and (b) evidence that all Stock of Parent or any of its
Subsidiaries consisting of uncertificated securities or securities in book entry
form has either been registered or entered on the books of Parent or the
applicable Borrower, as the case may be, in the name of Agent, for the benefit
of the Lender Group, or that the security interest held by Agent, for the
benefit of the Lender Group, has been otherwise perfected in accordance with
applicable law.
16. Within 30 days of the Closing Date, Agent shall have
received Amendment Number One to Software Escrow Agreement, which is in form and
substance reasonably satisfactory to Agent, has been duly executed and delivered
by each party thereto and is in full force and effect.
17. Within 30 days of the Closing Date, Agent shall have
received satisfactory evidence (including a certificate of the chief financial
officer of Parent) that all material tax returns required to be filed by
Obligors have been timely filed and all material taxes upon Obligors or their
properties, assets, income, and franchises (including Real Property taxes and
payroll taxes) have been paid prior to delinquency, except such taxes that are
the subject of a Permitted Protest.
18. Within 30 days of the Closing Date, Agent shall have
received copies of each of (a) the Indenture, (b) the Obligors' standard form of
software license agreement, and (c) the Obligors' standard forms of maintenance
agreement, together with a certificate of the Secretary of Parent certifying
such documents as being a true, correct, and complete copy thereof.
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