Exhibit 10.3
LOAN ASSUMPTION AGREEMENT
THIS 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 ("SEEC"), and Comdisco Ventures, Inc., a Delaware corporation
("Comdisco").
RECITALS
WHEREAS, Asera is obligated to Comdisco pursuant to that
certain Restructuring Agreement dated as of November 15, 2002, by and between
Asera and Comdisco (the "Restructuring Agreement") for, among other things,
payment of those certain "Outstanding Reimbursement Obligations" as evidenced by
the "Reimbursement Note" (as each such term is defined in the Restructuring
Agreement), and Asera's Outstanding Reimbursement Obligations to Comdisco, as of
January 8, 2003, are $1,000,000 in principal amount, plus approximately
$12,880.74 in accrued interest from November 15, 2002.
WHEREAS, Asera's Outstanding Repayment Obligations and all
indebtedness, accrued and unpaid interest thereon, and any other "Secured
Obligations" (as such term is defined in the Restructuring Agreement) owing by
Asera to Comdisco pursuant to the Restructuring Agreement and the "Subject
Agreements" (as such term is defined in the Restructuring Agreement; and for
purposes of this Agreement, the Restructuring Agreement and all such Subject
Agreements are hereinafter referred to, collectively, as the "Comdisco Loan
Documents") (all such indebtedness, collectively, the "Comdisco Indebtedness"),
are secured by the "Collateral" (as such term is defined in the Restructuring
Agreement);
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
SEEC has agreed to purchase, the Required Assets (as such term is defined in the
Asset Purchase Agreement (defined below), a true, correct and complete copy is
attached hereto as Exhibit "A") including, without limitation, the Collateral,
and to assume the Assumed Liabilities (as such term is defined in the Asset
Purchase Agreement), including, without limitation, a portion of the Comdisco
Indebtedness, pursuant to that certain Asset Purchase Agreement dated as of
January 8, 2003 (the "Asset Purchase Agreement"), by and between the Assignee
and SEEC (such sale and purchase, the "Asset Sale");
WHEREAS, in connection with the Asset Sale, Comdisco desires
that SEEC assume a portion of the Comdisco Indebtedness, subject to the terms
and conditions hereof; and
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WHEREAS, concurrently herewith, each of (i) Venture Lending &
Leasing III, Inc. ("VLL") in its capacity as collateral agent ("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"), and (ii) KPCB Holdings, Inc., as nominee, a Delaware
corporation ("KPCB"), as representative and collateral agent for and on behalf
of the Bridge Lenders (as such term is defined in that certain Note and Warrant
Purchase Agreement dated as of November 15, 2002, by and among Asera, KPCB and
the other signatories thereto) are entering into loan assumption agreements with
the Assignee and SEEC.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the
agreements contained herein, the parties agree as follows:
Section 1. Assumption and Payment of Indebtedness.
(a) Assumption. Subject to the terms hereof, SEEC hereby
assumes, as of the Effective Date (as defined herein), a $506,440.37 portion of
the Outstanding Repayment Obligations (representing a principal obligation of
$500,000, plus accrued and unpaid interest of $6,440.37 as of January 8, 2003)
(the "Restructured Comdisco Debt"). The Restructured Comdisco Debt shall accrue
simple interest from and after January 8, 2003, at the rate of eight and three
quarters percent (8.75%) per annum ($121.37 per diem) until paid.
(b) Payment of Assumed Obligations. SEEC acknowledges that the
obligations assumed pursuant hereto under the Comdisco Loan Documents (i) are
owing to Comdisco from Asera, and (ii) upon the Effective Date will be owing to
Comdisco from SEEC, without any defense, offset or counterclaim of any kind or
nature whatsoever as of the date hereof. SEEC shall pay the Restructured
Comdisco Debt, and accrued interest thereon, in full, on or before the Effective
Date, by wire transfer to the account designated in "Exhibit C" attached hereto,
or by other cash equivalent payment reasonably acceptable to Comdisco.
(c) Consents and Waiver.
(i) Assignment for the Benefit of Creditors. Subject
to the provisions hereof, Comdisco will and hereby does consent to Asera's
making a general assignment for the benefit of creditors and naming Sherwood as
the Assignee. It shall be a condition precedent to effectiveness of the consent
set forth in this Section 1(c)(i) hereof, that the Closing (as such term is
defined in the Asset Purchase Agreement) shall have occurred under the Asset
Purchase Agreement as in effect on the date hereof and subject to no amendments
except as expressly consented to by Comdisco.
(ii) Asset Sale. Subject to the provisions hereof and
the satisfaction of all of the conditions precedent set forth in Section 6 of
this Agreement, Comdisco will and hereby does consent to the sale of the
Required Assets to SEEC.
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(iii) Conversion of Bridge Indebtedness. Subject to
the provisions hereof and the satisfaction of all of the conditions precedent
set forth herein and in that certain Consent and Agreement of even date
herewith, a true, correct and complete of which is attached hereto as "Exhibit
B" (the "Consent"), by and among KPCB, Asera, Sherwood and SEEC, Comdisco will
and hereby does consent to the Bridge Conversion (as such term is defined in the
Consent).
(iv) Waiver. Effective upon the granting of the
consents described in Sections 1(c)(i), 1(c)(ii) and 1(c)(iii) hereof, Comdisco
hereby waives any and all defaults or Events of Default under the Comdisco Loan
Documents that may have occurred or shall occur as a result of the Assignment,
Asset Sale or Bridge Conversion. Effective as of the Effective Date, the
execution and delivery of this Agreement by Comdisco shall constitute a cure of
any such default or Event of Default.
Section 2. No Further Liability. It is the intention of Comdisco to not
retain as liable parties all makers and endorsers of the Comdisco 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 Restructured
Comdisco Debt by SEEC pursuant hereto (subject to revival and reinstatement
under Section 5).
Section 3. Release of Comdisco. To the fullest extent permitted by
applicable law, except for each of Asera's and 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 Comdisco, 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 Comdisco 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, shareholders, 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 4. Assignee to Administer Assets and Liabilities of Asera. As a
material inducement to Comdisco to enter into this Agreement, 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 Assignee and Asera covenants and agrees that it
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will not file a petition for bankruptcy relief with respect to Asera or its
assets. Assignee and Asera each acknowledges that Comdisco is relying on Asera's
and Assignee's agreements herein, and in the concurrent consents of the WTI
Syndicate and KPCB 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 Comdisco intends 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 Comdisco would not have entered into
this Agreement and granted to Asera the accommodations provided herein (in
particular, the release from obligations provided by Section 2), but for the
agreements of the Assignee and Asera under this Section 4.
Section 5. Revival of Obligations. If Comdisco 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
SEEC with respect to the Outstanding Repayment Obligations or other Secured
Obligations, or the value thereof, then, (i) the liabilities of the Asera, and
of any maker, endorser, or guarantor of the Comdisco 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 Comdisco, (ii) the provisions of Section 2 shall be rendered
null, void and of no effect whatsoever.
Section 6. Effective Date. This Agreement shall not be effective until
each of the following conditions precedent has been fulfilled to the
satisfaction of Comdisco (such date, the "Effective Date"):
(a) Closing of Asset Sale. The Closing (as such term is
defined in the Asset Purchase Agreement) of the Asset Sale pursuant to the Asset
Purchase Agreement in form and substance satisfactory to Comdisco shall have
occurred.
(b) Legal Fees. Asera shall have paid to Comdisco or its
counsel, Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, an amount necessary to reimburse
Comdisco for attorneys' fees, costs and expenses incurred by Comdisco in
connection with the negotiation, drafting and consummation of this Agreement as
of the Effective Date.
(c) Appointment of Assignee. Asera shall have effected the
Assignment and Sherwood shall be duly appointed as the Assignee.
(d) Loan Assumptions. KPCB, as representative and collateral
agent for the Bridge Lenders, and the WTI Syndicate shall have entered into loan
assumption agreements in substantially the form provided to Comdisco on January
7, 2003, and such assumption agreements shall have become effective.
(e) Board Resolutions of SEEC. Comdisco shall have received a
Secretary's Certificate executed by the Secretary of SEEC, which shall certify
that attached thereto is a complete and correct copy of resolutions duly adopted
by SEEC's Board of Directors, which resolutions have not been modified, amended,
or rescinded in any respect and are in full force and effect as of the Effective
Date, and which resolutions authorize and ratify any actions previously,
concurrently, or subsequently taken by SEEC with respect to the execution and
performance of this Agreement.
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(f) Payment of Restructured Comdisco Debt. SEEC shall have
paid the Restructured Comdisco Debt in accordance with Section 1(b).
Section 7. Waivers. To the maximum extent permitted by law, SEEC waives
(a) all rights to require Comdisco to proceed against Asera or Sherwood, or
proceed against, enforce or exhaust any security for the Secured Obligations (as
such term is defined in the Restructuring Agreement) or to marshal assets or to
pursue any other remedy in Comdisco's power whatsoever; (b) all defenses arising
by reason of any disability or other defense of Asera or Sherwood, the cessation
for any reason of the liability of Asera or Sherwood, any defense that any other
indemnity, guaranty or security was to be obtained, any claim that Comdisco has
made SEEC's obligations more burdensome or more burdensome than Sherwood's or
Asera's obligations, and the use of any proceeds of the Obligations other than
as intended or understood by Comdisco or SEEC; (c) all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of acceptance of this Agreement, and all other notices or
demands to which SEEC might otherwise be entitled; (d) all rights to file a
claim in connection with the Obligations in a proceeding filed by or against
Asera or Sherwood; (e) all rights to require Comdisco to enforce any of its
remedies and (f) until the Obligations are satisfied or fully paid, with such
payment not subject to return: (i) all rights of subrogation, contribution,
indemnification or reimbursement, (ii) all rights, remedies and defenses SEEC
may have or acquire against Comdisco.
Section 8. 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 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 California
without any regard to conflicts of law principals.
(c) Amendments. Prior to the Effective Date, any provision of
this Agreement may be amended by a written instrument signed by the Assignee,
SEEC and Comdisco. From and following the Effective Date, any provision of this
Agreement may be amended by a written instrument signed by SEEC and Comdisco.
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(d) Benefits of Agreement. This Agreement is entered into for
the sole protection and benefit of the parties hereto, 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.
(e) Expenses. All costs and expenses incurred by Comdisco in
connection with the transactions contemplated by this Agreement shall be paid by
SEEC.
(f) Entire Agreement. This Agreement (together with each of
the documents referenced 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.
(g) 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. SEEC may not
assign, except as expressly contemplated herein, any rights, obligations or
benefits under this Agreement without the prior written consent of Comdisco.
(h) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid, legal, and
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.
(i) 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.
(j) 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.
(k) 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.
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Section 9. Representations. In order to induce Comdisco to enter into
this Agreement and to continue the financial accommodations under the
Restructuring Agreement, SEEC hereby represents and warrants to Comdisco that:
(a) Corporate Existence; Compliance with Law. SEEC (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the corporate power and authority
and the legal right to own and operate its property, and to conduct the business
in which it is currently engaged, (iii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership or operation of property or the conduct of its business require such
qualification, and (iv) is in compliance with all material laws applicable to
SEEC and its business, except to the extent that the failure to so qualify as a
foreign corporation as required by clause (iii) of this Section or to comply
with all requirements of applicable law as required by clause (iv) of this
Section would not have a material adverse effect on the business, operations,
property or financial condition of SEEC, and would not materially adversely
affect the ability of SEEC to perform its obligations under this Agreement.
(b) Corporate Power; Authorization; Enforceable Obligations.
SEEC has the corporate power and authority and the legal right to make, execute,
deliver and perform its obligations under this Agreement, and has taken all
necessary corporate action to authorize the assumption and payment of the
Restructured Comdisco Debt on the terms and conditions of this Agreement, and to
authorize the execution, delivery and performance of this Agreement. No consent
or authorization of, filing with, or other act by or in respect of any other
person (including stockholders and creditors of SEEC) or any governmental
authority, is required in connection with the execution, delivery, performance,
validity or enforceability against SEEC of this Agreement or the Comdisco
Indebtedness, except for such consents as have been obtained or made. This
Agreement and the Restructured Comdisco Debt are the legal, valid and binding
obligations of SEEC, enforceable against SEEC in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(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.
"SEEC" "COMDISCO"
SEEC, INC., a Pennsylvania corporation COMDISCO VENTURES, INC., a Delaware corporation
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxxx Xxxxx
----------------------------------- ----------------
Name: Xxxxxxxx Xxxx Name: Xxxxxx Xxxxx
Title: President and CEO Title: Managing Director
Address: Park West One Address: Comdisco Ventures, Inc.
Cliff Mine Road, Ste. 000 Xxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Facsimile: 000.000.0000 Attention: Xxxxxx Xxxxx
Attention: Chief Executive Officer Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxx & Xxxxxxx, P.C.
00 Xxxxxxx Xx., 00xx Xxxxx with a copy to: Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
Xxxxxxxxxx, XX 00000 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Facsimile: 412.209.0672 Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx Attention: Xxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
"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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