Exhibit 10.21
FIRST AMENDMENT TO LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN DOCUMENTS (this "First Amendment") is dated
as of July 31, 2002 and is entered into between NIKU CORPORATION (the
"Borrower"), and MID PENINSULA BANK (the "Lender").
RECITALS:
A. Lender has previously extended a revolving line of credit to
Borrower in the amount of $25,000,000 (the "Major Revolving Credit Facility"),
which Major Revolving Credit Facility is evidenced by (among other things) the
following (the "Major Revolving Credit Facility Documents") and each of which is
dated October 19, 2001: that certain Business Loan Agreement (the "Major
Revolving Credit Facility Business Loan Agreement") and that certain Promissory
Note (the "Major Revolving Credit Facility Note") in the original principal
amount of the Major Revolving Credit Facility. Concurrently with the execution
and delivery of the Major Revolving Credit Facility Documents, Lender also
extended a revolving line of credit to Borrower in the amount of $5,000,000 (the
"Minor Revolving Credit Facility"), which Minor Revolving Credit Facility is
evidenced by (among other things) the following (the "Minor Revolving Credit
Facility Documents") and each of which is dated October 19, 2001: that certain
Business Loan Agreement (Asset Based) (the "Minor Revolving Credit Facility
Business Loan Agreement") and that certain Promissory Note - Asset Based Loan
(the "Minor Revolving Credit Facility Note") in the original principal amount of
the Minor Revolving Credit Facility. The Major Revolving Credit Facility
Documents and the Minor Revolving Credit Facility Documents are further secured
by that certain Amended and Restated Commercial Security Agreement also dated as
of October 19, 2001 that was executed and delivered by Borrower to Lender (the
"Amended and Restated Security Agreement").
B. Borrower and Lender intend to modify and amend the Major
Revolving Credit Facility Documents and the Minor Revolving Credit Facility
Documents, as provided by this First Amendment. The Major Revolving Credit
Facility Documents, the Minor Revolving Credit Facility Documents, the Amended
and Restated Security Agreement, and all other documents, instruments,
certificates and agreements executed and delivered by Borrower to Lender shall
be collectively and alternatively referred to as the "Loan Documents."
AMENDMENT:
NOW, THEREFORE, Borrower and Lender hereby agree as follows:
1. EFFECTIVE DATE, DEFINITIONS, AND ACKNOWLEDGMENT. Unless
otherwise expressly provided by this First Amendment, this First Amendment shall
modify and, to the extent inconsistent with, amend the Loan Documents. Any
capitalized term not specifically defined herein shall have the meaning ascribed
to it in the referenced Loan Document. The foregoing recitals are incorporated
into this First Amendment by reference and acknowledged by Borrower to be true,
correct, and accurate.
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2. EXTENSION OF TERM. The term of the Loan Documents (and each of
them) shall be extended and renewed until May 2, 2003 and shall continue in full
force and effect until such time as all of the loans and advances evidenced by
the Loan Documents (or any of them) have been paid in full, including principal,
interest, costs, expenses, attorneys' fees, and other fees and charges.
3. INCREASE IN MAJOR REVOLVING CREDIT FACILITY. The Major Revolving
Credit Facility shall be modified and amended to increase the principal amount
thereof from Twenty Five Million Dollars ($25,000,000) to Twenty-Eight Million
Dollars ($28,000,000) and all references in the Major Revolving Credit Facility
Documents (including, without limitation, the Major Revolving Credit Facility
Note, the Major Revolving Credit Facility Loan Agreement, and the Amended and
Restated Security Agreement) shall be modified to replace references to the
Twenty Five Million Dollar ($25,000,000) sum to the new Twenty-Eight Million
Dollar ($28,000,000) sum.
4. DECREASE IN MINOR REVOLVING CREDIT FACILITY. The Minor Revolving
Credit Facility shall be modified and amended to decrease the principal amount
thereof from Five Million Dollars ($5,000,000) to Two Million Dollars
($2,000,000) and all references in the Minor Revolving Credit Facility Documents
(including, without limitation, the Minor Revolving Credit Facility Note, the
Minor Revolving Credit Facility Loan Agreement, and the Amended and Restated
Security Agreement) shall be modified to replace references to the Five Million
Dollar ($5,000,000) sum to the new Two Million Dollar ($2,000,000) sum.
5. ADDITIONAL MODIFICATIONS TO MAJOR REVOLVING CREDIT FACILITY LOAN
AGREEMENT. The Major Revolving Credit Facility Business Loan Agreement shall be
modified and amended as follows (any capitalized term not specifically defined
in this Section shall have the meaning ascribed to it in the Major Revolving
Credit Facility Business Loan Agreement):
1. Payment of Fees and Expenses: There will be a fee of $5,000 for
the extension of the Major Revolving Credit Facility Documents
in accordance with this First Amendment.
2. Liquidity Requirement: The Ten Million Dollar ($10,000,000) sum
recited in the "Liquidity Requirement" covenant on page 4 of the
Major Revolving Credit Facility Business Loan Agreement shall be
reduced to Five Million Dollars ($5,000,000).
3. Operating Expenses: In addition to the other covenants recited
in the "Operating Expenses" covenant on page 4 of the Major
Revolving Credit Facility Business Loan Agreement, Borrower
agrees that for Borrower's second fiscal quarter ending July 31,
2002 in an amount exceeding Eighteen Million Five Hundred
Thousand Dollars ($18,500,000) for such fiscal quarter, shall
not incur any Operating Expenses for Borrower's third fiscal
quarter ending October 31, 2002 in an amount exceeding Eighteen
Million Five Hundred Thousand Dollars ($18,500,000) for such
fiscal quarter, and shall not incur any Operating Expenses for
Borrower's fourth fiscal quarter ending January 31, 2003 in an
amount exceeding Eighteen Million Five Hundred Thousand Dollars
($18,500,000) for such fiscal quarter.
4. Available Cash Expenditures: In addition to the other covenants
recited in the "Available Cash Expenditures" covenant on page 4
of the Major Revolving Credit
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Facility Business Loan Agreement, Borrower agrees that Borrower
shall not expend or consume Available Cash as defined in the
Major Revolving Credit Facility Business Loan Agreement for
Borrower's fiscal quarter ending July 31, 2002 in an amount
exceeding Nine Million Dollars ($9,000,000) for such fiscal
quarter, shall not expend or consume Available Cash for
Borrower's fiscal quarter ending October 31, 2002 in an amount
exceeding Six Million Dollars ($6,000,000) for such fiscal
quarter, and shall not expend or consume Available Cash for
Borrower's fiscal quarter ending January 31, 2003 in an amount
exceeding Five Million Dollars ($5,000,000) for such fiscal
quarter.
5. Change in Ownership: The "change of ownership" event of default
on page 7 of the Major Revolving Credit Facility Business Loan
Agreement shall be modified to read as follows: "The acquisition
by any individual (other than the Company's chief executive
officer) or entity (other than Vector Capital and its
affiliates) of twenty-five percent (25%) or more of the common
stock of Borrower."
6. Permitted Indebtedness Definition: The definition of "Permitted
Indebtedness" on pages 10 and 11 of the Major Revolving Credit
Facility Business Loan Agreement shall be modified to add a new
category "(e)", which shall read as follows: "(e) up to Fifteen
Million Dollars ($15,000,000) of other indebtedness of Borrower
and its subsidiaries which is subordinated to indebtedness
incurred under this Business Loan Agreement on terms reasonably
acceptable to Lender."
6. ADDITIONAL MODIFICATIONS TO MINOR REVOLVING CREDIT FACILITY LOAN
AGREEMENT. The Minor Revolving Credit Facility Business Loan Agreement shall be
modified and amended as follows (any capitalized term not specifically defined
in this Section shall have the meaning ascribed to it in the Minor Revolving
Credit Facility Business Loan Agreement):
1. Payment of Fees and Expenses: There will be a $1,000 fee for the
extension of the Minor Revolving Credit Facility Documents in
accordance with this First Amendment.
2. Liquidity Requirement: The Ten Million Dollar ($10,000,000) sum
recited in the "Liquidity Requirement" covenant on page 5 of the
Minor Revolving Credit Facility Business Loan Agreement shall be
reduced to Five Million Dollars ($5,000,000).
3. Operating Expenses: In addition to the other covenants recited
in the "Operating Expenses" covenant on page 5 of the Minor
Revolving Credit Facility Business Loan Agreement, Borrower
agrees that for Borrower's second fiscal quarter ending July 31,
2002 in an amount exceeding Eighteen Million Five Hundred
Thousand Dollars ($18,500,000) for such fiscal quarter, shall
not incur any Operating Expenses for Borrower's third fiscal
quarter ending October 31, 2002 in an amount exceeding Eighteen
Million Five Hundred Thousand Dollars ($18,500,000) for such
fiscal quarter, and shall not incur any Operating Expenses for
Borrower's fourth fiscal quarter ending January 31, 2003 in an
amount exceeding Eighteen Million Five Hundred Thousand Dollars
($18,500,000) for such fiscal quarter.
4. Available Cash Expenditures: In addition to the other covenants
recited in the "Available Cash Expenditures" covenant on page 5
of the Minor Revolving Credit Facility Business Loan Agreement,
Borrower agrees that Borrower shall not expend
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or consume Available Cash as defined in the Minor Revolving
Credit Facility Business Loan Agreement for Borrower's fiscal
quarter ending July 31, 2002 in an amount exceeding Nine Million
Dollars ($9,000,000) for such fiscal quarter, shall not expend
or consume Available Cash for Borrower's fiscal quarter ending
October 31, 2002 in an amount exceeding Six Million Dollars
($6,000,000) for such fiscal quarter, and shall not expend or
consume Available Cash for Borrower's fiscal quarter ending
January 31, 2003 in an amount exceeding Five Million Dollars
($5,000,000) for such fiscal quarter.
5. Change in Ownership: The "change of ownership" event of default
on page 8 of the Minor Revolving Credit Facility Business Loan
Agreement shall be modified to read as follows: "The acquisition
by any individual (other than the Company's chief executive
officer) or entity (other than Vector Capital and its
affiliates) of twenty-five percent (25%) or more of the common
stock of Borrower."
6. Permitted Indebtedness Definition: The definition of "Permitted
Indebtedness" on page 13 of the Minor Revolving Credit Facility
Business Loan Agreement shall be modified to add a new category
"(e)", which shall read as follows: "(e) up to Fifteen Million
Dollars ($15,000,000) of other indebtedness of Borrower and its
subsidiaries which is subordinated to indebtedness incurred
under this Business Loan Agreement on terms reasonably
acceptable to Lender."
7. CONDITIONS PRECEDENT. Lender's duties to extend and renew the
obligations under the Loan Documents and to make advances in accordance with
this First Amendment shall be subject to the satisfaction or written waiver by
Lender of the following conditions precedent:
1. there being no outstanding and uncured defaults under the Loan
Documents (or any of them) or any other obligations owing by
Borrower to Lender;
2. the satisfaction of each of the conditions precedent contained
in the Loan Documents (and each of them), each of which is
incorporated herein by this reference; and
3. the execution and delivery of (a) this First Amendment, (b) a
corporate resolution to borrow and pledge, in a form approved by
Lender, and (c) such other documents as Lender may request.
8. FURTHER ASSURANCES. The parties hereby agree, to the extent
permitted by law, from time to time, as and when requested by any other party
hereto or by its successors or assigns, to execute and deliver, or cause to be
executed and delivered, all such instruments, and to take, or cause to be taken,
all such further or other actions as may be reasonably necessary or desirable in
order to implement the provisions hereof and otherwise to effect the intent and
purposes hereof.
9. FURTHER MODIFICATIONS. Subject to the provisions of this First
Amendment relating to further assurances, this First Amendment does not create
any right in favor of Borrower nor any duty or obligation on the part of Lender
to enter in to any further modifications or amendments of the Loan Documents (or
any of them) or to provide any other or additional credit facilities to
Borrower.
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10. COUNTERPARTS. This First Amendment may be executed in
counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts together shall constitute one in the same
instrument.
11. RULES OF CONSTRUCTION. This First Amendment and all agreements
relating to the subject matter hereof are the product of joint negotiation by
the parties and their respective attorneys. The parties waive the provisions of
California Civil Code Section 1654 requiring that any ambiguities in this First
Amendment be construed against either of the parties. The parties agree that any
deletion of language from this First Amendment prior to its mutual execution by
Borrower and Lender shall not be construed to have any particular meaning or to
raise any presumption, canon of construction or implication, including, without
limitation, any implication that the parties intended thereby to state the
converse or opposite of the deleted language.
12. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This First Amendment
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this First Amendment and supersedes all prior and
contemporaneous agreements, representations, and understandings of the parties.
No failure or delay in exercising any right or remedy available to any party
shall be deemed a waiver of same, unless such waiver is set forth in writing and
signed by the party to be charged with such waiver. No supplement, modification,
or amendment hereof shall be binding unless executed in writing by all the
parties. No waiver of any of the provisions hereof shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
13. GENERAL. Time is of the essence herein. All exhibits referred to
herein are attached hereto and are incorporated by reference. The captions and
headings appearing herein are for the purpose of identification only and such
captions and headings shall not be construed to convey any substance or meaning
to the text hereof. Each person executing this First Amendment on behalf of a
party represents and warrants that such person is duly and validly authorized to
do so on behalf of the entity it purports to so bind and, if such party is a
partnership, corporation, limited liability company, or trustee, that such
partnership, corporation, limited liability company or trustee has full right
and authority to enter into this First Amendment and perform all of its
obligations hereunder. To the extent that the signatories hereto shall comprise
a group of individuals, the obligations and liabilities of such individuals
hereunder shall be joint and several.
14. REAFFIRMATIONS. Borrower hereby ratifies, reaffirms, and remakes
as of the date hereof each and every representation and warranty contained in
the Loan Documents (and each of them) or in any document incident thereto or
connected therewith as amended by this First Amendment.
15. CONTINUED FORCE. Except as amended by this First Amendment, all
of the terms and conditions of the Loan Documents (and each of them) (and each
and every document or instrument executed and delivered in connection therewith)
is and shall remain in full force and effect.
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IN WITNESS WHEREOF, Borrower has executed and delivered this First
Amendment to Lender on the date first above written at Palo Alto, California.
"BORROWER"
NIKU CORPORATION
By /s/ Xxxxxx Xxxxxx
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Its Chief Financial Officer
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IN WITNESS WHEREOF, Lender hereby accepts this First Amendment to be
effective as of the date first above written in Palo Alto, California.
"Lender"
MID PENINSULA BANK
By /s/ Xxxxxxxx Xxxxxxx
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Its Senior Vice President
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