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Exhibit 10.01
SILICON VALLEY BANK
AMENDMENT TO LOAN AGREEMENT
BORROWER: HNC SOFTWARE, INC.
ADDRESS: 0000 XXXXXXXXXXX XXXXX XXXX
XXX XXXXX, XXXXXXXXXX 00000-0000
DATE: JULY 10, 1996
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON
VALLEY BANK ("Silicon") and the borrower named above (the "Borrower"). The
Parties agree to amend the Loan and Security Agreement between them, dated
September 23, 1992, as amended by that Amendment to Loan Agreement dated
October 28, 1993, and as amended by that Amendment to Loan Agreement dated July
21, 1994, and as amended by that Amendment to Loan Agreement dated May 26,
1995, and as amended by that Amendment to Loan Agreement dated August 31, 1995,
and as amended by that Amendment to Loan Agreement dated May 5, 1996 and as
otherwise amended (the "Loan Agreement"), as follows, effective as of the date
hereof. (Capitalized terms used but not defined in this Amendment, shall have
the meanings set forth in the Loan Agreement.)
1. AMENDED SECTION 2.2. Section 2.2 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"2.2 COLLATERAL. The term "Collateral" as used in this
Agreement shall mean and include the following property of Borrower,
whether now owned or hereafter acquired: (a) All accounts, contract
rights, chattel paper, letters of credit, documents, securities,
money, and instruments, and all other obligations now or in the future
owning to the Borrower; (b) All inventory, goods, merchandise,
materials, raw materials, work in process, finished goods, farm
products, advertising, packaging and shipping materials, supplies, and
all other tangible personal property which is held for sale or lease
or furnished under contracts of service or consumed in the Borrower's
business, and all warehouse receipts and other documents; and (c) All
equipment, including without limitation all machinery, fixtures, trade
fixtures, vehicles, furnishings, furniture, materials, tools, machine
tools, office equipment, computers and peripheral devices, appliances,
apparatus, parts, dies and jigs; (d) All general intangibles
including, but not limited to, deposit accounts, goodwill, names,
trade names, trademarks and
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the goodwill of the business symbolized thereby, trade secrets,
drawings, blueprints, customer lists, patents, patent applications,
copyrights, security deposits, loan commitment fees, federal, state
and local tax refunds and claims, all rights in all litigation
presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments now or hereafter
arising therefrom, all claims of Borrower against Silicon, all rights
to purchase or sell real or personal property, all rights as a
licensor or licensee of any kind, all royalties, licenses, processes,
telephone numbers, proprietary information, purchase orders, and all
insurance policies and claims (including without limitation credit,
liability, property and other insurance), and all other rights,
privileges and franchises of every kind; (e) All books and records,
whether stored on computers or otherwise maintained; and (f) All
substitutions, additions and accessions to any of the foregoing, and
all products, proceeds and insurance proceeds of the foregoing, and
all guaranties of and security for the foregoing; and all books and
records relating to any of the foregoing."
2. NEGATIVE PLEDGE. Borrower covenants and agrees, without
limitation of any other term or provision hereof, not to cause or otherwise
permit to exist any liens or encumbrances regarding the Collateral, other than
Permitted Liens.
3. AMENDED SECTION 3.7. Section 3.7 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"3.7 FINANCIAL CONDITION AND STATEMENTS. All financial
statements now or in the future delivered to Silicon have been, and
will be, prepared in conformity with generally accepted accounting
principles and now in the future will completely and accurately
reflect the financial condition of the Borrower, at the times and for
the periods therein stated. Since the last date covered by any such
statement, there has been no material adverse change in the financial
condition or business of the Borrower. The Borrower is now and will
continue to be solvent. The Borrower will provide Silicon: (i)
within 30 days after the end of each fiscal quarter, a quarterly
financial statement prepared by the Borrower, and a Compliance
Certificate in such form as Silicon shall reasonably specify, signed
by the Chief Financial Officer of the Borrower, certifying that
throughout such quarter the Borrower was in full compliance with all
of the terms and conditions of this Agreement, and setting forth
calculations showing compliance with the financial covenants set forth
on the Schedule and such other information as Silicon shall reasonably
request; (ii) within 3 days after the earlier of the date the
Borrower's report 10-Q is filed or is required to be filed with the
Securities and Exchange Commission, such 10-Q report; (iii) within
120 days following the end of the Borrower's fiscal year, complete
annual financial statements, certified by independent certified public
accountants acceptable to Silicon; and (iv) within 3 days after the
earlier of the date the Borrower's report 10-K is filed or is required
to be filed with the Securities Exchange Commission, such 10-K
report."
4. AMENDED SECTION 4.5. Section 4.5 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"4.5 ACCESS TO COLLATERAL, BOOKS AND RECORDS. At all reasonable
times, and upon one business day notice, Silicon, or its agents, shall
have the right to inspect the Collateral, and the
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right to audit and copy the Borrower's accounting books and records
and Borrower's books and records relating to the Collateral. Silicon
shall take reasonable steps to keep confidential all information
obtained in any such inspection or audit, but Silicon shall have the
right to disclose any such information to its auditors, regulatory
agencies, and attorneys, and pursuant to any subpoena or other legal
process. The foregoing audits shall be at Silicon's expense.
Notwithstanding the foregoing, after the occurrence of an Event of
Default all audits shall be at the Borrower's expense."
5. AMENDED SCHEDULE TO LOAN AGREEMENT. The Schedule to Loan
Agreement is hereby deleted and replaced with the Schedule to Loan Agreement
attached hereto.
6. FACILITY FEE. Borrower shall pay to Silicon concurrently
herewith an additional facility fee in the amount of $2,500 which shall be in
addition to all interest and all other sums due Silicon and which shall not be
refundable.
7. GENERAL PROVISIONS. This Amendment, the Loan Agreement,
any prior written amendments to the Loan Agreement signed by Silicon and the
Borrower, and the other written documents and agreements between Silicon and
the Borrower set forth in full all of the representations and agreements of the
parties with respect to the subject matter hereof and supersede all prior
discussions, representations, agreements and understandings between the parties
and respect to the subject hereof. Except as herein expressly amended, all of
the terms and provisions of the Loan Agreement, and all other documents and
agreements between Silicon and the Borrower shall continue in full force and
effect and the same are hereby ratified and confirmed.
BORROWER:
HNC SOFTWARE, INC.
BY__________________________
TITLE:
BY__________________________
TITLE
SILICON:
SILICON VALLEY BANK
BY__________________________
TITLE________________________
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SILICON VALLEY BANK
AMENDED SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: HNC SOFTWARE, INC.
ADDRESS: 0000 XXXXXXXXXXX XXXXX XXXX
XXX XXXXX, XXXXXXXXXX 00000-0000
DATE: JULY 10, 1996
CREDIT LIMIT
(Section 1.1) An amount not to exceed $5,000,000 at any one
time outstanding (the"Revolving Loans" and the
loan facility is referred to as the "Revolving
Loan Facility").
LETTER OF CREDIT SUBLIMIT: Silicon, in its reasonable discretion, will
from time to time during the term of this
Agreement issue letters of credit for the
account of the Borrower ("Letters of Credit"),
in an aggregate amount at any one time
outstanding not to exceed $1,000,000, upon the
request of the Borrower, provided that, on the
date the Letters of Credit are to be issued,
Borrower has available to it Accounts Loans in
an amount equal to or greater than the face
amount of the Letters of Credit to be issued.
Prior to the issuance of any Letters of Credit,
Borrower shall execute and deliver to Silicon
Applications for Letters of Credit and such
other documentation as Silicon shall specify
(the "Letter of Credit Documentation"). Fees
for the Letters of Credit shall be as provided
in the Letter of Credit Documentation. Letters
of Credit may have a maturity date up to twelve
months beyond the Maturity Date in effect from
time to time, provided that if on the Maturity
Date, or on any earlier effective date of
termination, there are any outstanding letters
of credit issued by Silicon or issued by
another institution based upon an application,
guarantee, indemnity or similar agreement on
the part of Silicon, then on such date Borrower
shall provide to Silicon cash collateral in an
amount equal to the face amount of all such
letters of credit plus all interest, fees and
cost due or to become due in connection
therewith, to secure all of the Obligations
relating to said letters of credit, pursuant to
Silicon's then standard form cash pledge
agreement.
The Credit Limit set forth above regarding the
Revolving Loan Facility and the Loans available
thereunder at any time shall be reduced by the
face amount of Letters of Credit from time to
time outstanding.
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FOREIGN EXCHANGE
CONTRACT SUBLIMIT Up to $500,000 (the "Contract Limit") may be
utilized for spot and future foreign exchange
contracts (the "Exchange contracts"). The
Credit Limit regarding the Revolving Loan
Facility available at any time shall be reduced
by the following amounts (the "Foreign Exchange
Reserve") on each day (the "Determination
Date"): (i) on all outstanding Exchange
Contracts on which delivery is to be effected
or settlement allowed more than two business
days from the Determination Date, 10% of the
gross amount of the Exchange Contracts; plus
(ii) on all outstanding Exchange Contracts on
which delivery is to be effected or settlement
allowed within two business days after the
Determination Date, 100% of the gross amount of
the Exchange Contracts. In lieu of the Foreign
Exchange Reserve for 100% of the gross amount
of any Exchange Contract, the Borrower may
request that Silicon debit the Borrower's bank
account with Silicon for such amount, provided
Borrower has immediately available funds in
such amount in its bank account.
Silicon may, in its discretion, terminate the
Exchange Contracts at any time (a) that an
Event of Default occurs or (b) that there is
not sufficient availability under the Credit
Limit and Borrower does not have available
funds in its bank account to satisfy the
Foreign Exchange Reserve. If either Silicon or
Borrower terminates the Exchange Contracts, and
without limitation of the FX Indemnity
Provisions (as referred to below), Borrower
agrees to reimburse Silicon for any and all
fees, costs and expenses relating thereto or
arising in connection therewith.
Borrower shall not permit the total gross
amount of all Exchange Contracts on which
delivery is to be effected and settlement
allowed in any two business day period to be
more than $250,000 (the "Settlement Limit"),
nor shall Borrower permit the total gross
amount of all Exchange Contracts to which
Borrower is a party, outstanding at any one
time, to exceed the Contract Limit.
Notwithstanding the above, however, the amount
which may be settled in any two (2) business
day period may, in Silicon's sole discretion,
be increased above the Settlement Limit up to,
but in no event to exceed, the amount of the
Contract Limit (the "Discretionary Settlement
Amount") under either of the following
circumstances (the "Discretionary Settlement
Circumstances"):
(i) if there is sufficient availability under
the Credit Limit regarding the Revolving
Loan Facility in the amount of the Foreign
Exchange Reserve as of each Determination
Date, provided that Silicon in advance
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shall reserve the full amount of the Foreign
Exchange Reserve against the Credit Limit
regarding the Revolving Loan Facility; or
(ii) if there is insufficient availability
under the Credit Limit regarding the
Revolving Loan Facility as to settlements
within any two (2) business day period if
Silicon is able to: (A) verify good funds
overseas prior to crediting Borrower's
deposit account with Silicon (in the case
of Borrower's sale of foreign currency); or
(B) debit Borrower's deposit account with
Silicon prior to delivering foreign currency
overseas (in the case of Borrower's purchase
of foreign currency);
Provided that it is expressly understood that
Silicon's willingness to adopt the
Discretionary Settlement Amount is a matter of
Silicon's sole discretion and the existence of
the Discretionary Settlement Circumstances in
no way means or implies that Silicon shall be
obligated to permit the Borrower to exceed the
Settlement Limit in any two business day
period.
In the case of Borrower's purchase of foreign
currency. Borrower in advance shall instruct
Silicon upon settlement either to treat the
settlement amount as an advance under the
Credit Limit regarding the Revolving Loan
Facility, or to debit Borrower's account for
the amount settled.
The Borrower shall execute all standard form
applications and agreements of Silicon in
connection with the Exchange Contracts, and
without limiting any of the terms of such
applications and agreements, the Borrower will
pay all standard fees and charges of Silicon in
connection with the Exchange Contracts.
Without limiting any of the other terms of this
Loan Agreement or any such standard form
applications and agreements of Silicon,
Borrower agrees to indemnify Silicon and hold
it harmless, from and against any and all
claims, debts, liabilities, demands,
obligations, actions, costs and expenses
(including, without limitation, attorneys' fees
of counsel of Silicon's choice), of every
nature and description, which it may sustain or
incur, based upon, arising out of, or in any
way relating to any of the Exchange Contracts
or any transactions relating thereto or
contemplated thereby (collectively referred to
as the "FX Indemnity Provisions").
The Exchange Contracts shall have maturity
dates no later than the Maturity Date
INTEREST RATE (Section 1.2): A rate equal to the "Prime Rate" in effect from
time to time.
Interest shall be calculated on the basis of a
360-day year for the actual number of days
elapsed. "Prime Rate" means the rate announced
from
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time to time by Silicon as its "prime rate" it
is a base rate upon which other rates charged
by Silicon are based, and it is not necessarily
the best rate available at Silicon. The
interest rate applicable to the Obligations
shall change on each date there is a change in
the Prime Rate.
FACILITY FEE
(Section 1.3): Per the Amendment to Loan Agreement of even
date herewith.
MATURITY DATE
(Section 5.1): One year from the date hereof.
PRIOR NAMES OF BORROWER
(Section 3.2): XXXXX-XXXXXXX NEUROCOMPUTER CORPORATION
TRADE NAMES OF BORROWER
(Section 3.2): NONE
OTHER LOCATIONS AND ADDRESSES
(Section 3.3): 0000 XXXXXXXX XXXX, XXXXX 000, XXXXX XXXXXX,
XX 00000;
000 XX. XXXXXX XX., XXXXX 000, XXXXXXXXX,
XX 00000
MATERIAL ADVERSE LITIGATION
(Section 3.10): NONE
NEGATIVE COVENANTS-EXCEPTIONS
(Section 4.6): Without Silicon's prior written consent,
Borrower may do the following, provided that,
after giving effect thereto, no Event of
Default has occurred and no event has occurred
which, with notice or passage of time or both,
would constitute an Event of Default, and
provided that the following are done in
compliance with all applicable laws, rules and
regulations: (i) repurchase shares of
Borrower's stock pursuant to any employee stock
purchase or benefit plan, provided that the
total amount paid by Borrower for such stock
does not exceed $100,000 in any fiscal year.
FINANCIAL COVENANTS
(Section 4.1): Borrower shall comply with all of the following
covenants. Compliance shall be determined as
of the end of each quarter, except as otherwise
specifically provided below:
QUICK ASSET RATIO: Borrower shall maintain a ratio of "Quick
Assets" to current liabilities of not less
than 2.50 to 1.
TANGIBLE NET WORTH: Borrower shall maintain a tangible net worth of
not less than $40,000,000.
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DEBT TO TANGIBLE
NET WORTH RATIO: Borrower shall maintain a ratio of total
liabilities to tangible net worth of not more
than 0.50 to 1.
DEFINITIONS: "Current liabilities" shall have the meaning
ascribed thereto in accordance with generally
accepted accounting principles.
"Tangible net worth" means the excess of total
assets over total liabilities, determined in
accordance with generally accepted accounting
principles, excluding however all assets which
would be classified as intangible assets under
generally accepted accounting principles,
including without limitation goodwill,
licenses, patents, trademarks, trade names,
copyrights, and franchises.
"Quick Assets" means cash on hand or on deposit
in banks, readily marketable securities issued
by the United States, readily marketable
commercial paper rated "A-1" by Standard &
Poor's Corporation (or a similar rating by a
similar rating organization), certificates of
deposit and banker's acceptances, and accounts
receivable (net of allowance for doubtful
accounts).
SUBORDINATED DEBT: "Liabilities" for purposes of the foregoing
covenants do not include indebtedness which is
subordinated to the indebtedness to Silicon
under a subordination agreement in form
specified by Silicon or by language in the
instrument evidencing the indebtedness which is
acceptable to Silicon.
OTHER COVENANTS
(Section 4.1): Borrower shall at all times comply with all of
the following additional covenants:
1. Banking Relationship. Borrower shall at all
times maintain its primary banking
relationship with Silicon.
2. Indebtedness. Without limiting any of the
foregoing terms or provisions of this
Agreement, Borrower shall not in the future
incur indebtedness for borrowed money, except
for (i) indebtedness to Silicon, and (ii)
indebtedness incurred in the future for the
purchase price of or lease of equipment in an
aggregate amount not exceeding $250,000 at
any time outstanding.
3. Additional Event of Default. Without
limitation of the Events of Default as set
forth herein, any material adverse change in
the assets, business, or prospects of the
Borrower as compared to the date hereof,
shall constitute an Event of Default under
this Loan Agreement.
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BORROWER:
HNC SOFTWARE, INC.
BY__________________________
TITLE:
BY__________________________
TITLE:
SILICON:
SILICON VALLEY BANK
BY__________________________
TITLE________________________
