Exhibit 10.2
BRIDGE LOAN ASSUMPTION AGREEMENT
THIS BRIDGE LOAN ASSUMPTION AGREEMENT (this "Agreement") is
entered into as of January 8, 2003, by and among Sherwood Partners, Inc., a
California corporation ("Sherwood"), solely as the assignee for the benefit of
creditors of Asera, Inc., a Delaware corporation ("Asera"), SEEC, Inc., a
Pennsylvania corporation (the "Buyer"), and KPCB Holdings, Inc., as nominee, a
Delaware corporation ("KPCB"), as representative and collateral agent for and on
behalf of the Bridge Lenders (as defined herein) (in such capacity, the
"Collateral Agent").
RECITALS
WHEREAS, pursuant to that certain Note and Warrant Purchase
Agreement dated as of November15, 2002 (the "Bridge Purchase Agreement"), by and
among Asera, KPCB and the other signatories thereto (such signatories, with
KPCB, the "Bridge Lenders"), Asera has issued to the Bridge Lenders certain
senior secured promissory notes pursuant to the Bridge Purchase Agreement in the
aggregate principal amount of $2,112,525 (the "Bridge Notes");
WHEREAS, Asera's repayment obligations of all indebtedness,
accrued and unpaid interest thereon and any other amounts owing by Asera to the
Bridge Lenders pursuant to the Bridge Notes and Bridge Purchase Agreement
(collectively, the "Bridge Indebtedness") is secured by the Collateral (as such
term is defined in the Bridge Purchase Agreement);
WHEREAS, KPCB, in its capacity as (i) the Collateral Agent and
(ii) the Majority Lenders (as such term is defined in the Bridge Purchase
Agreement), may amend or waive any provision of the Bridge Purchase Agreement or
the other Transaction Documents (as such term is defined in the Bridge Purchase
Agreement) (collectively, all such Transaction Documents, for the purposes
hereof, the "Bridge Loan Documents") including, without limitation, the Bridge
Notes, and such amendment and/or waiver shall be binding on all Bridge Lenders;
WHEREAS, concurrently with the execution hereof, Asera intends
to make a general assignment for the benefit of creditors (the "Assignment")
whereby all of its assets (including, without limitation, the Collateral) will
be transferred to Sherwood as the assignee (hereinafter Sherwood shall be
referred to as the "Assignee");
WHEREAS, concurrently with the execution hereof but effective
as of immediately following the Assignment, the Assignee has agreed to sell, and
the Buyer has agreed to purchase, the Required Assets (as such term is defined
in the Asset Purchase Agreement) including, without limitation, the Collateral,
and assume the Assumed Liabilities (as such term is defined in the Asset
Purchase Agreement), including, without limitation, the Bridge Indebtedness,
pursuant to that certain Asset Purchase Agreement dated as of January 8, 2003
(the "Asset Purchase Agreement"), by and between the Assignee and the Buyer
(such sale and purchase, the "Asset Sale");
WHEREAS, concurrently with the execution hereof, each of KPCB,
the Buyer, Asera and the Assignee are entering into that certain Consent and
Agreement of even date herewith (the "Conversion Agreement"), pursuant to which,
among other things, KPCB, in its capacity as the Collateral Agent and with the
consent of the Majority Lenders, has agreed to convert the Bridge Indebtedness
into shares of capital stock of the Buyer and, in certain instances, the right
to receive certain cash payments as payment in full for the Bridge Indebtedness
(such contemplated transaction, the "Bridge Conversion"), subject to the
conditions set forth therein;
WHEREAS, in connection with the Asset Sale, the Bridge Lenders
desire that the Buyer assume the Bridge Indebtedness, subject to the terms and
conditions hereof; and
WHEREAS, concurrently herewith, each of (i) Comdisco, Inc.
("Comdisco") and (ii) Venture Lending & Leasing III, Inc. ("VLL") in its
capacity as collateral agent for itself as a lender and for the WTI Syndicate
(hereinafter defined), Third Coast Capital a Division of DVI Financial Services,
Inc. ("TCC"), Venture Banking Group, a Division of Cupertino National Bank
("VBG"), GATX Ventures, Inc. ("GATX"), and Xxxxxx Financial Leasing, Inc., a GE
Capital company ("Xxxxxx") (VLL, TCC, VBG, GATX and Xxxxxx are hereinafter
referred to collectively as the "WTI Syndicate") are entering loan assumption
agreements with the Assignee and the Buyer:
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the
agreements contained herein, the parties agree as follows:
Section 1. Assumption of Indebtedness.
(a) Assumption. Subject to the terms hereof, the Buyer hereby
assumes, as of the Effective Date (as defined herein), all of the Bridge
Indebtedness, including all covenants, agreements and obligations of Asera under
the Bridge Loan Documents. From and after the Effective Date, any reference in
any Bridge Loan Document to Asera (as "Company," "Debtor" or otherwise) shall be
deemed a reference to the Buyer.
(b) Obligations. The Buyer acknowledges that the obligations
assumed pursuant hereto under the Bridge Loan Documents (i) are owing to the
Bridge Lenders from Asera, and (ii) following the Effective Date will be owing
to the Bridge Lenders from the Buyer, without any defense, offset or
counterclaim of any kind or nature whatsoever as of the date hereof.
(c) Consent. Reference is hereby made to the Conversion
Agreement. Effective upon the granting of the consent described in Section 1(b)
thereof, the Bridge Lenders hereby waive any and all defaults or Events of
Default under the Bridge Loan Documents that may have occurred or shall occur as
a result of the Assignment, the Asset Sale or the Debt Conversion. Effective as
of the Effective Date, the execution and delivery of this Agreement by the
Collateral Agent on behalf of the Bridge Lenders shall constitute a cure of any
such default or Event of Default.
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Section 2. Collateral.
(a) Existing Collateral. From and after the Effective Date,
the definition of "Collateral" (or any subset or component thereof) under the
Bridge Purchase Agreement and any other Bridge Loan Document shall be deemed to
include only the Required Assets. The Buyer shall not have any obligation to
grant any security interest in any other asset of the Buyer and no restriction
or other obligation with respect to the Collateral (or any subset or component
thereof) shall be deemed to apply to any other asset of the Buyer. From and
after the Effective Date, subject to Section 3 hereof, the obligations secured
by the Collateral shall be limited to the Buyer's obligations to repay the
Bridge Indebtedness assumed pursuant to Section 1(a) hereof.
(b) Further Assurances. The Buyer hereby covenants and agrees
that it shall do and perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as the Collateral Agent may reasonably
request in order to carry out the intent and accomplish the purposes of this
Section 2 including, without limitation, (i) the assignment of any applicable
existing UCC financing statements, and (ii) the execution of any additional UCC
financing statements.
Section 3. Continuing Validity.
(a) Existing Covenants, Restrictions and Defaults. Other than
the Buyer's obligation to repay the Bridge Indebtedness assumed pursuant to
Section 1(a) hereof, each of the Bridge Lenders, on one hand, and the Buyer, on
the other, acknowledge and agree that the Buyer shall not be bound by any of the
covenants, restrictions or events of default set forth in the Bridge Loan
Documents except for the following:
(i) The negative covenants set forth in the following
Sections of the Bridge Purchase Agreement: (A) Section 8.9 (Sale of Assets); and
(B) subsections (a) - (e) and (g) of Section 8.12 (Collateral) (it being
understood that, for purposes of subsection (d) of Section 8.12, the current
policies of insurance carried by the Buyer are sufficient to satisfy the
conditions thereof and that the Buyer shall have a period of 30 days following
the closing to have the Collateral Agent named a loss payee and/or an additional
insured thereunder).
(ii) The negative covenant set forth in Section 8.8
of the Bridge Purchase Agreement amended in its entirety to read as follows:
"Except with the prior written approval of the Majority Lenders, the Company
[the Buyer] will not, and will not permit any of its subsidiaries to, merge with
or consolidate into, or acquire all or substantially all of the assets of any
person or entity, or sell, transfer, lease, license, or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets if such action would materially and adversely impair the
Company's ability to repay the Obligations."
(iii) The Events of Default set forth in the
following Sections of each Bridge Note: (A) Section 3(a) (Payment Default); (B)
Section 3(c) (Negative Covenants) [as amended hereby]; (C) Section 3(e)
(Bankruptcy); (D) Section 3(f) (Appointment of Receiver); (E) Section 3(h)
(Judgments) (provided that, for the purposes thereof, the threshold amount
stated therein shall be One Million Dollars ($1,000,000) rather than as set
forth therein); and (F) Section 3(i) (Liquidations).
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(iv) The following additional covenant: "Except with
the prior written approval of the Majority Lenders, the Company [the Buyer]
shall not (A) impair, restrict or otherwise encumber any of its assets
including, without limitation, the Collateral, except for encumbrances in effect
on the date hereof and as set forth on Schedule A hereto or as contemplated by
the Asset Purchase Agreement, and (B) allow any Intellectual Property Collateral
(as defined in the Intellectual Property Security Agreement) to become abandoned
nor any registration thereof to be terminated, forfeited, expired or dedicated
to the public."
(b) No Further Liability. It is the intention of the Bridge
Lenders to not retain as liable parties all makers and endorsers of the Bridge
Loan Documents and such maker, endorser, or guarantor is hereby, as of the
Effective Date, released by virtue of this Agreement and the assumption of the
Bridge Indebtedness by the Buyer pursuant hereto (subject to revival and
restatement under Section 7 hereof).
Section 4. Consistent Changes. The Bridge Loan Documents are hereby
amended wherever necessary to reflect the changes described herein.
Section 5. Release of Bridge Lenders. To the fullest extent permitted
by applicable law, except for each of Asera's and the Assignee's respective
claims under this Agreement, each of Asera (by and through the Assignee) and the
Assignee (solely in its capacity as assignee for the benefit of creditors of
Asera), on the one hand, releases the Bridge Lenders, on the other, from any and
all claims, demands, debts, issues, causes of action and liabilities, whether
liquidated or unliquidated, fixed or contingent, matured or unmatured, known or
unknown, then existing or thereafter arising, that are based in whole or part on
any act, omission or other occurrence relating to the Bridge Loan Documents and
the transactions contemplated therein or arising in connection therewith,
including, without limiting the generality of the foregoing, those arising in
connection with any written or oral communications between or among any of them
or any other person or entity, or the actions of any of them, as the case may
be, or their officers, directors, stockholders, employees, attorneys, agents,
successors, assigns, heirs and representatives in connection with any of the
foregoing, and further including any claims of the Assignee with respect to
fraudulent of preferential transfers or claims of a similar nature. EACH OF THE
PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IT IS AWARE OF, FAMILIAR WITH,
UNDERSTANDS, AND EXPRESSLY WAIVES THE PROVISIONS OF SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, AND ANY OTHER SIMILAR STATUTE, CODE, LAW OR REGULATION TO
THE FULLEST EXTENT IT MAY WAIVE SUCH RIGHTS AND BENEFITS. SECTION 1542 PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Section 6. Assignee to Administer Assets and Liabilities of Asera. As a
material inducement to the Bridge Lenders to enter into this Agreement, the
Assignee agrees that it will fully and finally administer the assets and
liabilities of Asera as an assignee for the benefit of creditors under
applicable California law, and each of the Assignee and Asera covenants and
agrees that it will not file a petition for bankruptcy relief with respect to
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Asera or its assets. The Assignee and Asera each acknowledges that the Bridge
Lenders are relying on such agreements herein, and in the concurrent consents of
the WTI Syndicate and Comdisco and consummation of the Asset Purchase Agreement,
to constitute the functional equivalent of, and to be in lieu of, a Chapter 7
liquidation of Asera; that the Bridge Lenders intend that consummation of this
Agreement shall be the full and final resolution of all of its rights and
obligations with respect to Asera and its assets; and that the Bridge Lenders
would not have entered into this Agreement and granted to Asera the
accommodations provided herein (in particular, the release from obligations
provided by Section 5 hereof), but for the agreements of the Assignee and Asera
under this Section 6.
Section 7. Revival of Obligations. If any Bridge Lender shall hereafter
be required in any bankruptcy case, legal action or comparable proceeding to
refund or disgorge all or any portion of any payment made by or on behalf of
Asera or the Buyer with respect to the Bridge Indebtedness or other Obligations
(as such term is defined in the Bridge Purchase Agreement), or the value
thereof, then, (a) the liabilities of the Asera, and of any maker, endorser, or
guarantor of the Bridge Loan Documents shall be automatically revived,
reinstated and restored in such amount or amounts and shall exist as though such
consideration or portion thereof had never been paid or delivered to the Bridge
Lenders, and (b) the provisions of Section 3(b) hereof shall be rendered null,
void and of no effect whatsoever.
Section 8. Effective Date. This Agreement shall not be effective until
each of the following conditions precedent has been fulfilled to the
satisfaction of the Majority Lenders (such date, the "Effective Date"):
(a) the closing of the Asset Sale pursuant to the Asset
Purchase Agreement, in form and substance satisfactory to the Majority Lenders,
shall have occurred;
(b) each of Comdisco and the WTI Syndicate shall have entered
into loan assumption agreements in form and substance satisfactory to the
Majority Lenders and such assumption agreements shall have become effective by
their respective terms; and
(c) Asera shall have paid to the Collateral Agent or its
counsel, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, an amount necessary to reimburse the
Collateral Agent for attorney's fees, costs and expenses incurred by the
Collateral Agent in connection with the negotiation, drafting and consummation
of this Agreement and the transactions contemplated hereby in an amount not to
exceed $30,000.
Section 9. Miscellaneous.
(a) Notice. All notices and other communications required or
permitted under this Agreement shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, overnight delivery service
or registered or certified United States mail, addressed to the address set
forth on the signature page hereto (with copies to such other parties as noted
thereon), or such other address as a party may provide to the other no later
than ten (10) days prior to any such notice or communication. All notices and
other communications shall be effective upon the earlier of actual receipt
thereof by the person to whom notice is directed or (i) in the case of notices
and communications sent by personal
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delivery or telecopy, one business day after such notice or communication
arrives at the applicable address or was successfully sent to the applicable
telecopy number, (ii) in the case of notices and communications sent by
overnight delivery service, at noon (local time) on the second business day
following the day such notice or communication was sent, and (iii) in the case
of notices and communications sent by United States mail, seven days after such
notice or communication shall have been deposited in the United States mail.
(b) Governing Law. This Agreement shall be governed in all
respects by and construed in accordance with the laws of the State of Delaware
without any regard to conflicts of law principals.
(c) No Novation or Waiver. Except as specifically set forth
herein, the execution, delivery and effectiveness of this Agreement shall not
(i) limit, impair, constitute a waiver by, or otherwise affect any right, power
or remedy of, the Bridge Lenders under any Bridge Loan Document, (ii) constitute
a waiver of any provision of any Bridge Loan Document or of any event of default
that may have occurred and be continuing, or (iii) alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in any Bridge Loan Documents, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
(d) Amendments. Prior to the Effective Date, any provision of
this Agreement may be amended by a written instrument signed by the Assignee,
the Buyer and the Collateral Agent. From and following the Effective Date, any
provision of this Agreement may be amended by a written instrument signed by the
Buyer and the Collateral Agent.
(e) Benefits of Agreement. This Agreement is entered into for
the sole protection and benefit of the parties hereto, the other Bridge Lenders
and their respective successors and assigns, and no other person or entity shall
be a direct or indirect beneficiary of, or shall have any direct or indirect
cause of action or claim in connection with, this Agreement.
(f) Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
(g) Entire Agreement. This Agreement, together with each of
the documents reference herein (and each of the schedules and exhibits appended
thereto), constitutes the entire agreement of the parties with respect to the
matters set forth herein and supersedes any prior agreements, commitments,
discussions and understandings, oral or written, with respect thereto.
(h) Successors and Assigns. The provisions hereof shall inure
to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties to this Agreement. The Buyer may not
assign, except as expressly contemplated herein, any rights, obligations or
benefits under this Agreement without the prior written consent of the
Collateral Agent.
(i) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid, legal, and
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enforceable under all applicable laws and regulations. If, however, any
provision of this Agreement shall be invalid, illegal, or unenforceable under
any such law or regulation in any jurisdiction, it shall, as to such
jurisdiction, be deemed modified to conform to the minimum requirements of such
law or regulation, or, if for any reason it is not deemed so modified, it shall
be invalid, illegal, or unenforceable only to the extent of such invalidity,
illegality, or limitation on enforceability without affecting the remaining
provisions of this Agreement, or the validity, legality, or enforceability of
such provision in any other jurisdiction.
(j) Counterparts. This Agreement may be executed in any number
of counterparts, including counterparts transmitted by facsimile or electronic
transmission, each of which shall be an original, but all of which together
shall constitute one instrument.
(k) Further Assurances. Each party to this Agreement shall do
and perform or cause to be done and performed all such further acts and things
and shall execute and deliver all such other agreements, certificates,
instruments and documents as the other party hereto may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and
the consummation of the transactions contemplated hereby.
(l) Construction; Titles; Gender. This Agreement is the result
of negotiations between and has been reviewed by each of the parties hereto and
their respective counsel, if any; accordingly, this Agreement shall be deemed to
be the product of all of the parties hereto, and no ambiguity shall be construed
in favor of or against any one of the parties hereto. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. Whenever used herein,
the singular number shall include the plural and the plural the singular, and
the use of any gender shall be applicable to all genders.
(This space intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
"KPCB" "BUYER"
KPCB HOLDINGS, INC., a Delaware SEEC, INC., a Pennsylvania corporation
corporation, in its capacity as
Collateral Agent and Majority Lender
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxxx Xxxx
--------------------------- -----------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxxxxx Xxxx
Title: President Title: President and CEO
Address: x/x Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx Xxxxxxx: Park West One
0000 Xxxx Xxxx Xx. Cliff Mine Road, Ste. 200
Menlo Park, CA 94025 Xxxxxxxxxx, XX 00000
Facsimile: 650.233.0378 Facsimile: 000.000.0000
Attention: Xxxx X. Xxxxxxxxx Attention: Chief Executive Officer
with a copy to: Xxxxxxx, Phleger & Xxxxxxxx LLP with a copy to: Xxxxx & Xxxxxxx, P.C.
One Market - Spear Tower 00 Xxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Facsimile: 415.442.1010 Facsimile: 412.209.0672
Attention: Xxxxxx X. Xxxxxxxxx Attention: Xxxxxx X. Xxxxxxx
"SHERWOOD" or "ASSIGNEE"
SHERWOOD PARTNERS, INC., a California corporation, solely
as assignee for the benefit of creditors of Asera, Inc., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxxxxxx Xxxx., Xxx. 000
Xxx Xxxxxxx, XX 00000
Facsimile: 310.477.8402
Attention: Xxxxxxx Xxxxx
with a copy to: Sulmeyer, Kupetz, Xxxxxxx &
Xxxxxxx
000 Xxxxx Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 213.629.4520
Attention: Xxxxx X. Xxxxxx
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