Exhibit 10.40
AMENDMENT NO. 6 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 6, dated as of September 30, 1999, to the LOAN
AND SECURITY AGREEMENT, dated as of March 31, 1998, (the "LOAN AND SECURITY
AGREEMENT"), between FOOTHILL CAPITAL CORPORATION, a California corporation,
with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 ("FOOTHILL"), and COMPUTRON SOFTWARE, INC., a
Delaware corporation, with its chief executive offices located at 000 Xxxxx 00
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "BORROWER").
PREAMBLE
The Borrower has requested Foothill to amend the Loan and
Security Agreement to delete the sublimit set forth in the Loan and Security
Agreement with respect to investment by the Borrower in Computron Canada.
Accordingly, the Borrower and Foothill hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the
Loan and Security Agreement and not otherwise defined herein are used herein as
defined therein.
2. INVESTMENTS. Section 7.13(b) of the Loan and Security
Agreement is hereby amended as follows:
"(ii) loans and advances by Borrower made after the
Closing Date to its wholly-owned Subsidiaries (and (A)
Subsidiaries in which Borrower owns all but director
qualifying shares or a nominal ownership interest required to
be held by other Persons due to foreign law ownership
requirements and (B) the joint venture involving Computron
Canada, either before or after it is no longer a wholly-owned
Subsidiary of the Borrower) not to exceed $7,000,000 in the
aggregate over the term of this Agreement, so long as at the
time of making any such loan or advance no Default or Event of
Default shall have occurred and be continuing."
3. CONDITIONS. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the date upon which
all such conditions have been satisfied being herein called the "Effective
Date"):
(a) The representations and warranties contained in
this Amendment and in Section 5 of the Loan and Security Agreement and each
other Loan Document, after giving effect to this Amendment, shall be correct on
and as of the Effective Date as though made on and as of such date (except where
such representations and warranties relate to an earlier date in which case such
representations and warranties shall be true and correct as of such earlier
date); no Default or Event of Default shall have occurred (assuming Section 7.13
is amended as set forth above) and be continuing on the Effective Date or result
from this Amendment becoming effective in accordance with its terms.
(b) Foothill shall have received a counterpart of
this Amendment, duly executed by
the Borrower.
(c) All legal matters incident to this Amendment
shall be satisfactory to Foothill
and its counsel.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to Foothill as follows:
(a) The Borrower (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and (ii) has all requisite corporate power, authority and legal right to
execute, deliver and perform this Amendment, and to perform the Loan and
Security Agreement, as amended hereby.
(b) The execution, delivery and performance of this
Amendment by the Borrower, and the performance by the Borrower of the Loan and
Security Agreement, as amended hereby (i) have been duly authorized by all
necessary corporate action, (ii) do not and will not contravene its charter or
by-laws or any applicable law, and (iii) except as provided in the Loan
Documents, do not and will not result in the creation of any Lien upon or with
respect to any of its respective properties.
(c) This Amendment and the Loan and Security
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
its terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors' rights generally.
(d) No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority is required in
connection with the due execution, delivery and performance by the Borrower of
this Amendment and the performance by the Borrower of the Loan and Security
Agreement as amended hereby.
(e) The representations and warranties contained in
Section 5 of the Loan and Security Agreement and each other Loan Document, after
giving effect to this Amendment, are correct on and as of the Effective Date as
though made on and as of the Effective Date (except to the extent such
representations and warranties expressly relate to an earlier date in which case
such representations and warranties shall be true and correct as of such earlier
date), and no Default or Event of Default has occurred and is continuing on and
as of the Effective Date or will result from this Amendment becoming effective
in accordance with its terms.
5. CONTINUED EFFECTIVENESS OF THE LOAN AND SECURITY AGREEMENT
AND LOAN DOCUMENTS. The Borrower hereby (i) confirms and agrees that each Loan
Document to which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects except that on and
after the Effective Date of this Amendment all references in any such Loan
Document to "the Loan and Security Agreement", the "Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan and
Security Agreement
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shall mean the Loan and Security Agreement as amended by this Amendment; and
(ii) confirms and agrees that to the extent that any such Loan Document purports
to assign or pledge to Foothill, or to grant a security interest in or Lien on,
any collateral as security for the obligations of the Borrower from time to time
existing in respect of the Loan and Security Agreement and the Loan Documents,
such pledge, assignment and/or grant of the security interest or Lien is hereby
ratified and confirmed in all respects.
6. MISCELLANEOUS.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings herein are
included for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
(c) This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
(d) The Borrower will pay on demand all reasonable
fees, costs and expenses of Foothill in connection with the preparation,
execution and delivery of this Amendment including, without limitation,
reasonable fees disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP,
counsel to Foothill.
COMPUTRON SOFTWARE, INC.,
a Delaware corporation
By: XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title: EVP & CFO
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
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