DATED: 9th SEPTEMBER 2002

Exhibit 10.47

DATED: 9th SEPTEMBER 2002

(1) PEREGRINE SYSTEMS, INC. (as “Lender”)

(2) PEREGRINE SYSTEMS OPERATIONS LIMITED (as “Borrower”)

lending to be replaced by funding agreement to be redrafted by MOP

FACILITY FUNDING AGREEMENT

This is a lending agreement with recall.

XXXXXXXXX XXXXXX & XXXXX

000 XXXXXX XXXXXX XXXXXX XXXX 0XX

TEL: 000 0000 0000

FAX: 000 0000 0000

REF: AXG/P-503-18

THIS DEED is made on the 9th day of September 2002

PARTIES:-

(1) PEREGRINE SYSTEMS, INC., a company incorporated in Delaware, United States of America, whose registered office is at 0000 Xxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, XXX (the “Lender”); and

(2) PEREGRINE SYSTEMS OPERATIONS LIMITED, a company incorporated in the Republic of Ireland (Registered Number 324176) whose registered office is at Xxxx 0000, Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxx 00 (the “Borrower”).

WHEREAS:

(A) The Lender is the ultimate parent company of the Borrower and each of the European Subsidiaries

(D) This Deed sets out the terms and conditions of the working capital facility.

THIS DEED WITNESSES as follows:-

1. DEFINITIONS

“Advance”		means each advance made or to be made under the Facility;

“Bank Account Threshold”		means US$9.5 million;

“Business Day”		means a day (other than a Saturday or Sunday) on which banks and financial markets are open for business in Dublin and New York;

“Commencement of Insolvency”		means:

		(a) the appointment of a receiver and manager or administrative receiver over all or any part of the property of the Borrower and/or one or more of the European Subsidiaries;

		(b) the making of an administration or winding up order in relation to the Borrower and/or one or more of the European Subsidiaries or of an order which subjects the Borrower and/or one or more of the European Subsidiaries to any procedure under the Insolvency Law of a country outside of Great Britain;

		(c) the presentation by the Borrower and/or one or more of the European Subsidiaries or their senior management of proposals to the Borrowers and/or one or more of the European Subsidiaries’ creditors, or to their principal financial creditors, for any rescheduling, refinancing or restructuring of all or a substantial part of the Borrower’s and/or one or more of the European Subsidiaries’ indebtedness;

“Euro”		means the lawful currency for the time being of Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal and Spain;

“European Subsidiaries”		means Peregrine Systems Global Limited, Remedy Software Ireland Limited, International Limited (UK), Ramedy Software Ireland Limited, Peregrine Systems SRL (Italy), Peregrine Systems GmbH (Germany), Peregrine Systems Limited (UK), Peregrine Systems GmbH (Switzerland), Peregrine Systems AB (Sweden), Peregrine Systems AS (Norway), Peregrine Systems OY (Finland), Peregrine Systems SA (Spain), Peregrine Systems BV (Netherlands), Peregrine Systems BVBA (Belgium), Peregrine Systems A/S (Denmark), Peregrine Systems SA (France), Apsylog Inc (US), Acquisition Et Gestion Dc Donnees Et Sig (France), FPrint UK Limited, Remedy (Switzerland) GmbH, Remedy GmbH (Germany), Remedy Software AB (Sweden), Remedy Spain SL, Remedy (UK) Limited, Remedy S.r.1 (Italy), Remedy Software Solutions BV (The Netherlands), Remedy S.A.R.L. (France), Remedy France Holding S.A.S., Remedy Services S.A.S (France);

“Facility”		means subject to termination under clause 7 below, the loan facility granted by the Lender to the Borrower under this Deed;

“Loan”		means the aggregate principal amount of the Advances from time to time outstanding under this Deed;

“Notice of Drawing”		means a Notice of Drawing requesting an Advance in the form annexed to this Deed as Appendix 1, duly completed and signed by two directors on behalf of the Borrower;

“Repayment Date”		means the date specified in Clause 6 or such later date upon which sums become payable to the Lender in accordance with Clause 8;

“Sterling and £”		means the lawful currency for the time being of the United Kingdom; and

“Termination”		means the occurrence of each or any of the events set out in clause 7 below.

1.1 Further Definitions

(a) Any reference in this Deed for

“Lender”		includes its successors immediate or derivative;

“month”		or a period of one or more “months” is a reference to a period which ends on the day (“the corresponding day”) in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started or, if there is no corresponding day, a period which ends on the last day of the relevant calendar month;

“persons”		includes individuals, bodies corporate, unincorporated associations, partnerships, governments, states and state agencies (whether or not having separate legal personality);

“tax(es)”		includes any tax levy, import duty, charge, fee, deduction or withholding of any nature and however called, levied, collected, withheld or assessed by any person;

2. INTERPRETATION

In this Deed references to the deed or document are to such deed or document as from time to time amended, novated, supplemented or replaced by a document having a similar effect, a reference to any statute includes that statute as amended, extended or re-enacted and to any bye-law, regulation, order, instrument or subordinate legislation made under the relevant statute, the singular includes the plural and vice versa, references to clauses and sub-clauses and to schedules are to the clauses and sub-clauses of and to the schedules to this Agreement, the word “including” will not limit the generality of any preceding words, the words “other” and “otherwise” will not be limited by any words preceding them, headings to clauses and sub-clauses are to be ignored in construing this Deed and references to time are to London time unless otherwise specified.

3. AMOUNT AND PURPOSE

3.1 The minimum amount which is required to be advanced under this Facility shall not be less than the sum necessary from time to time to maintain the aggregate value of funds available to the Borrower and to the European Subsidiaries in their respective bank accounts (the “Accounts”) at not less than US$6 million (the “Minimum Amount”).

3.2 Sums advanced under this Facility may only be utilised by the Borrower and the European Subsidiaries for their working capital purposes and reorganisation costs.

3.3 Any single advance required under the Facility in excess of US$1 million for the purposes of only one of the European Subsidiaries shall be subject to the prior approval in writing of the Cheif Financial Officer of the Lender such approval not to be unreasonably withheld or delayed in the case of expenditure reasonably and properly required for the purpose of the business of the relevant European Subsidiary.

4. FACILITY

4.1 Availability

Subject to the terms of this Deed the Facility shall be available to the Borrower for drawing on its own behalf and on behalf of the European Subsidiaries until the Repayment Date.

4.2 Advance of the Facility

A Notice of Drawing requesting drawdown of any Advance under the Facility must be received by the Lender no later than 10.00 a.m. (Los Angeles time) on the second Business Day before the date on which the Advance is required. The Notice of Drawing must be accompanied by a reconciliation of the Account and a cash flow (the

“Cash Flow”) covering a period of not less than three months. The Notice of Drawing must specify:-

(a) the amount required and the European Subsidiary to whom it is to be paid;

(b) the purpose for which the Advance is required in so far as the same is not clear from the Cash Flow;

(d) the name and address of the bank and the title and number of the account to which the Advance is to be remitted; and

(e) whether the Advance is to be paid in Euros or Pounds Sterling.

4.3 Conditions precedent

The Lender’s obligation to make the Facility available will only be effective when all of the following conditions precedent have been satisfied:-

(a) this Deed is executed by the Borrower;

(b) the Borrower has provided the first cash flow forecast to the Lender; and

5. FINANCIAL INFORMATION

The Lender shall provide to the Borrower copies of the Lender’s monthly management accounts together with a monthly cash flow forecast within 14 days of the last day of each calendar month to enable the Borrower to satisfy itself that the Lender will be able to continue to make the Facility available to the Borrower. The Borrower shall be entitled to pass this information on to the European Subsidiaries.

6. REPAYMENT

6.1 Subject as provided in Clause 8 the Borrower shall repay the Loan or shall procure that the European Subsidiaries shall repay the Loan within 12 months of Termination or such other period as the parties shall agree.

6.2 Prior to Termination, the Borrower shall repay or shall procure that the other European Subsidiaries shall repay to the Lender a sum equivalent to the balance available to the Borrower in the Account in excess of the Bank Account Threshold (“Threshold Repayment”).

6.3 Subject to the terms of this Deed, the Threshold Repayment shall be eligible for re-borrowing in the event that sums available to the Borrower and/or the European Subsidiaries in the Accounts fall below the Minimum Amount.

7. TERMINATION

7.1 Termination will occur or will be deemed to occur in the following events:-

(a) the Lender declaring the Facility is cancelled, provided that the Lender provides the Borrower with ninety days written notice of such cancellation and further provided that the Facility shall not be cancelled prior to 31 October 2003;

(b) the Borrower fails to make Threshold Repayments or to procure that they shall have been made in accordance with clause 6 of this Deed within seven days of the Borrower becoming aware that a Threshold Repayment is due to be made to the Lender.

(c) any warranty, representation or statement made in this Deed proves to have been incorrect or misleading in any material respect and is not remedied to the satisfaction of the other party within twenty-eight days of notification by the other party;

(d) the Lender or the Borrower fails duly to perform or comply with any of the obligations expressed in this Deed;

(e) the Borrower commences negotiations with all or a material part of its creditors with a view to the general re-adjustment or re-scheduling of its indebtedness or makes a general assignment for the benefit of or a composition with its creditors other than with the prior written consent of the Lender provided that such consent shall not be unreasonably withheld;

(f) any creditor of the Borrower takes any corporate action or other steps are taken or legal proceedings are started for the winding-up, dissolution or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of the Borrower or of all or a material part of the Borrower’s revenues and assets, other than in each case with the prior written consent of the Lender provided that such consent shall not be unreasonably withheld;

(g) any judgment or any other judicial determination of liability is issued against the Borrower or any of its subsidiaries or any distress, execution, diligence, attachment or other process affects any asset of the Borrower in respect of a

liability in excess of £50,000 or its equivalent and is not discharged within seven days thereafter.

8. SUBORDINATION

The Lender agrees that following the Commencement of Insolvency of the Borrower or of one or more of the European Subsidiary it shall take no step or action for the repayment of the Facility or any part of it until such time that all other creditors of the Borrower and/or the European Subsidiary have been paid in full and the Lender further agrees that any sums received by it in respect of the Facility after such date shall be held by it on trust for such other creditors of the Borrower so that the Lender shall be bound to pay any such sums so received to such person or persons who may be responsible for arranging for the payment of the Borrower’s creditors.

9. PAYMENTS

9.1 All payments to be made under this Deed shall be made in Pounds Sterling and/or in Euros and in immediately available funds.

9.2 All payments to be made under this Deed shall be made without set off or counterclaim and free and clear of and without deduction of any taxes, levies, duties, charges, fees, deductions, withholdings, restrictions or conditions of any description. If the Lender or Borrower is required at any time by any applicable law to make any such deduction from any payment, the sum due from the Borrower or the Lender in respect of such payment shall be increased by such an amount as will result, notwithstanding the making of such deduction, in the Lender’s or the Borrower’s receipt on the due date for payment of each amount of a net sum equal to the sum that the Lender or the Borrower would have received had no such deductions been required to be made.

10. REPRESENTATIONS WARRANTIES AND UNDERTAKINGS

10.1 The Lender represents, warrants and undertakes to the Borrower that:-

(a) it has full power to enter into and perform its obligations under this Deed (which has been duly accepted by the Borrower), and that this Deed is valid, enforceable and binding upon it in accordance with its terms, and that it has obtained and will maintain in effect all necessary corporate authorisations and all other necessary consents; licences and authorities;

(b) the execution, delivery and performance by the Lender of this Deed and the events contemplated by this Deed; will not violate:-

(i) its By-laws and articles of incorporation;

(ii) any provision of any applicable law, regulation or decree to which it is subject;

(iii) any provision of any contract, banking facility or arrangement to which it is a party or any other obligations on the Lender,

or result in the execution or imposition of any lien, charge or encumbrance on the assets of the Lender,

(c) the Lender is not in default under any agreement (save as disclosed in writing to the Borrower) to which it is a party which would have a material adverse effect on its business and financial condition; and

(d) prior to Termination, the Lender will not call for payment of any sums due from the Borrower to the Lender save for the Threshold Repayment in accordance with Clause 6 of this Deed.

10.2 The Borrower represents and warrants to the Lender that:-

(a) it has full power to enter into and perform its obligations under this Deed (which has been duly accepted by the Lender), and that the Deed is valid enforceable and binding upon it in accordance with its terms, and that it has obtained and will maintain in effect all necessary corporate authorisations and all other necessary consents; licences and authorities;

(b) the execution, delivery and performance by the Borrower of this Deed and the events contemplated by this Deed; will not violate:-

(i) its memorandum and articles of association;

(ii) any provision of any applicable law, regulation or decree to which it is subject;

(iii) any provision of any contract, banking facility or arrangement to which it is a party or any other obligations on the Borrower;

or result in the execution or imposition of any lien, charge or encumbrance on the assets of the Borrower; and

(c) the Borrower is not in default under any agreement (save as disclosed in writing to the Lender) to which it is a party which would have a material adverse effect on its business and financial condition.

10.3 The warranties given by the Lender and the Borrower herein shall be continuing and deemed to be repeated on each date on which any payment is made under this Deed and on the making of any request for an Advance by reference to the facts existing on each such date.

11. ASSIGNMENT AND TRANSFERS

The Borrower may not assign or transfer any of its rights or obligations under this Deed without the written consent of the Lender.

11.1 Leader

The Lender may at any time assign all or any part of the Leader’s rights, obligations and interests under this Agreement to any person.

11.2 Disclosure of Information

The Lender may disclose to a potential assignee (or any other person with whom the Lender is contemplating entering into contractual relations with respect to this Agreement) such information about the Borrower as the Lender considers material to a potential assignee.

12. MISCELLANEOUS

12.1 Time of the essence

Time will be of the essence of the performance of the obligation of the Borrower under or in connection with this Deed.

12.2 Severability

Each of the provisions of this Deed is severable and distinct from the others and if at any time one or more of such provisions is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Deed will not in any way be affected or impaired.

12.3 Rights cumulative

All rights of the Leader are cumulative and any express right conferred on the Lender or the Borrower under this Deed may be exercised without prejudicing or being limited by any other express or implied right of the Lender.

13. LAW AND JURISDICTION

13.1 This Deed shall be governed by and construed and enforced in accordance with the laws ofthe State of Delaware or the laws of the United States as construed by the United States District Court for the District of Delaware, without giving effect to any choice of law or conflict of law provision which would cause the application of the laws of any jurisdiction other than as set forth in this section 13.1.

13.2 No Exclusive or Limitation of Rights

Nothing in this Clause 13 excludes or limits any right which the Lender or the borrower may have (whether under the law of any country, on international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.

14. NOTICES

14.1 Each communication to be under this Deed shall be made in writing and may be made by letter sent by international overnight courier or facsimile transmission.

14.2 Any communication to be made or delivered by one party to the other shall be made or delivered to that other party at its address set out at the beginning of this Deed or to such other address as may from time to time be notified in writing by one party to the other in accordance with this clause.

14.3 Any communication made or delivered for any purpose of this Deed shall be deemed made or delivered when dispatched: (a) in the case of a facsimile transmission, upon printed confirmation of complete transmission by telecopy; or (b) in the case of a letter sent by international overnight courier in an envelope addressed to the relevant address, upon personal delivery thereof.

15. THIRD PARTIES

Except in respect of the obligations of the Lender in Clause 8, a person who is not a party to this Deed shall have no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Deed.

16. EXECUTION

The parties agree and intend this Deed should be executed in counterparts.

AS WITNESS the hands of the duly authorised representatives of the parties the day and year first above written.

EXECUTED as a DEED by	)
PEREGRINE SYSTEMS, INC.	)
in the presence of:	)
			/s/ Xxx Xxxxxx
/s/ Xxxxxxx X.Xxxxxx			By:	Xxx Xxxxxx
Xxxxxxx X. Xxxxxx			Its:	Chief Financial Officer
0000 Xxx Xx.
Xxx Xxxxx, XX 00000
Attorney
/s/ Xxxxxxx X. Xxxxxx			/s/ Xxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxx			By:	Xxxx Xxxxxxxxxx
3575 Xxx St.			Its:	Chief Executive Officer
Xxx Xxxxx, XX 00000
Attorney

EXECUTED as a DEED by		)
PEREGRINE SYSTEMS OPERATIONS		)	/s/ Geoffroy Boonen
LIMITED in the presence of:		)	Director

/s/ Karima Ez- Agili			/s/ Xxxx Xxxxxxx
XXXXXX EZ- AGILI 0 XXXXXXXXX XXXXXX			Director/Secretary
EAST TWICKEN HAM
TWI 2PY
Xxxxxxxxx

00. EXECUTION

The parties agree and intend this Deed should be executed in counterparts.

AS WITNESS the hands of the duly authorised representatives of the parties the day and year first above written. .

EXECUTED as a DEED by	)
PEREGRINE SYSTEMS, INC.	)
in the presence of:	)
			/s/ Xxx Xxxxxx
/s/ Xxxxxxx X.Xxxxxx			By:	Xxx Xxxxxx
Xxxxxxx X. Xxxxxx
Pereqrine House			Its:	Chief Financial Officer
00-00 Xxxxxxxx Xx.
Xxxxxxxx XX00XX

/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx			/s/ Xxxx X. Xxxxxxxxxx
Peregrine House			By:	Xxxx X. Xxxxxxxxxx
00-00 Xxxxxxxx Xx
Xxxxxxxx XX00XX			Its:	Chief Executive Officer
EXECUTED as a DEED by		)
PEREGRINE SYSTEMS OPERATIONS		)	/s/ Geoffroy Boonen
LIMITED in the presence of:		)	Director

/s/ [ILLEGIBLE]			/s/ Xxxx Xxxxxxx
c/o Peregrine Systems			Director/Secretary
Peregrine House
00-00 Xxxxxxxx Xxxx.
Xxxxxxxx
Xxxxxx XX00XX

/s/ Xxxx Xxxxx
XXXX XXXXX
XXXX 0000
X.X.X. XXXXXXXX
X.00

Document Metadata

Table of Contents

DATED: 9th SEPTEMBER 2002

Document Metadata