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EXHIBIT 10.2
CHANGE IN TERMS AGREEMENT
Borrower: TouchStone Software Corporation
TIN: 00-0000000)
0000 Xxxx Xx., Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Lender: SOUTHERN CALIFORNIA BANK
00000 XXXXXX XXXX XXXXXX P.O. BOX 000
XXXXXX XXXXX XXXXXX
XX XXXXXX, XX 00000-0000
Principal Amount: $500,000.00 Date of Agreement: September 3, 1997
DESCRIPTION OF EXISTING INDEBTEDNESS. Promissory Note dated September 12,
1996, in the principal amount of $500,000.00, reflecting a current principal
balance of $0.00.
DESCRIPTION OF COLLATERAL. Certificate of Deposit No. 427060092.
DESCRIPTION OF CHANGE IN TERMS.
(1) Maturity date shall be extended to September 15, 1998. Borrower will
continue to pay regular monthly payments of accrued unpaid interest with all
outstanding principal plus all accrued unpaid interest due at maturity. A
$250.00 documentation fee shall be collected upon execution of this document.
(2) Additional Terms, Conditions and Covenants to Business Loan Agreement dated
September l2, 1996, are hereby amended as follows:
(i) Item (1) is amended in its entirety to read as follows: Borrower to maintain
minimum Shareholder Equity of $9,000,000.00, to be measured quarterly.
(ii) Item (2) is amended in its entirety to read as follows: Borrower to
maintain minimum liquidity of $10,000,000.00, to be measured quarterly.
Liquidity is defined as the sum of cash plus marketable securities.
ARBITRATION. Lender and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
arising from this Agreement or otherwise, including without limitation
contract and tort disputes, shall be arbitrated pursuant to the Rules of the
American Arbitration Association, upon request of either party. No act to take
or dispose of any collateral securing this Agreement shall constitute a waiver
of this arbitration agreement or be prohibited by this arbitration agreement.
This includes, without limitation, obtaining injunctive relief or a temporary
restraining order; invoking a power of sale under any dead of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to
Article 9 of the Uniform Commercial Code. Any disputes, claims, or
controversies concerning the lawfulness or reasonableness of any act, or
exercise of any right, concerning any collateral securing this Agreement,
including any claim to rewind, reform, or otherwise modify any agreement
relating to the collateral securing this Agreement, shall also be arbitrated,
provided however that no arbitrator shall have the right or the power to
enjoin or restrain any act of any party. Lender and Borrower agree that in the
event of an action for judicial foreclosure pursuant to California Code of
Civil Procedure Section 726, or any similar provision in any other state, the
commencement of such an action will not constitute a waiver of the right to
arbitrate and the court shall refer to arbitration as much of such action,
including counterclaims, as lawfully may be referred to arbitration. Judgment
upon any award rendered by any arbitrator may be entered in any court having
jurisdiction. Nothing in this Agreement shall preclude any party from seeking
equitable relief from a court of competent jurisdiction. The statute of
limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in an action brought by a party shall be applicable in
any arbitration proceeding, and the commencement of an
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arbitration proceeding shall be deemed the commencement of an action for these
purposes. The Federal Arbitration Act shall apply to the construction,
interpretation, and enforcement of this arbitration provision.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms
of the original obligation or obligations including all agreements evidenced
or securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreemeni does not waive Lander's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a
satisfaction of the obligation(s). It is the intention of Lender to retain as
liable parties all makers and endorsers of the original obligation(s),
including accommodation parties, unless a party is expressly released by
Lender in writing. Any maker or endorser, including accommodation makers, will
not be released by virtue of this Agreement. If any person who signed the
original obligation does not sign this Agreement below, then all persons
signing below acknowledge that this Agreement is given conditionally, based on
the representation to Lender that the non-signing party consents to the
changes and provisions of this Agreement or otherwise will not be released by
it. This waiver applies not only to any initial extension, modification or
release, but also to all such subsequent actions.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS AGREEMENT. BORROWER AGREES TO THE TERMS OF THE AGREEMENT AND
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE AGREEMENT.
BORROWER:
TouchStone Software Corporation
BY: By:
Xxxxx X. Xxxxxx
President/CEO Xxxxxx X.Xxxx, Executive Vice President/CFO
LENDER:
SOUTHERN CALIFORN BANK
Authorized Officer
