EXHIBIT 10.53
EXECUTION COPY
AMENDMENT NO. 11 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 11, dated as of March 13, 2002, to the LOAN AND SECURITY
AGREEMENT, dated as of March 31, 1998, as amended prior to the date hereof (as
so amended, the "LOAN AND SECURITY AGREEMENT"), between FOOTHILL CAPITAL
CORPORATION, a California corporation, with a place of business located at 0000
Xxxxxxxx Xxxxxx, Xxxxx 0000X, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 ("FOOTHILL"), and
AXS-ONE INC. (formerly known as COMPUTRON SOFTWARE, INC.), a Delaware
corporation, with its chief executive offices located at 000 Xxxxx 00 Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "BORROWER").
PREAMBLE
The Borrower has requested Foothill to amend the Loan and Security
Agreement to revise the financial covenants. Accordingly, the Borrower and
Foothill hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the Loan and
Security Agreement and not otherwise defined herein are used herein as defined
therein.
2. FINANCIAL COVENANTS. Section 7.20 of the Loan and Security Agreement is
hereby amended to read in its entirety as follows:
"EBITDA. Failure to maintain EBITDA of at least the following amounts,
measured on a cumulative basis for the period from the beginning of each
calendar year to each calendar quarter end of such calendar year as set
forth below:
Quarter End EBITDA
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3/31/02 ($400,000)
6/30/02 ($350,000)
9/30/02 $ 0
12/31/02 $700,000
provided that, thereafter, upon receipt of the financial projections
required to be delivered to Foothill pursuant to Section 6.3 (fourth
paragraph) hereof for each fiscal year, the Borrower and Foothill shall
negotiate in good faith to determine the minimum EBITDA as of the end of
each calendar quarter covered by such financial projections and, in the
event that the Borrower and Foothill are unable to agree upon the amounts
of such EBITDA on or before the date that is 30 days after the date that
Foothill has received such projections, the EBITDA at the end
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of each calendar quarter of the fiscal year covered by such financial
projections shall not be less than the greater of (i) 70% of the EBITDA
contained in such financial projections and (ii) the amount set forth above
for the corresponding calendar quarter end PLUS 10% of such amount."
3. CONDITIONS PRECEDENT. This Amendment shall become effective (and the
covenants set forth in Section 2 above shall be applicable as of the date of
this Amendment) only upon satisfaction in full of the following conditions
precedent (the date upon which all such conditions have been satisfied being
herein called the "Effective Date"):
(a) The representations and warranties contained in this Amendment and
in Section 5 of the
Loan and Security Agreement and each other Loan Document,
after giving effect to this Amendment, shall be correct on and as of the
Effective Date as though made on and as of such date (except where such
representations and warranties relate to an earlier date in which case such
representations and warranties shall be true and correct as of such earlier
date); no Default or Event of Default shall have occurred and be continuing on
the Effective Date or result from this Amendment becoming effective in
accordance with its terms;
(b) Foothill shall have received a counterpart of this Amendment, duly
executed by the Borrower; and
(c) All legal matters incident to this Amendment shall be satisfactory
to Foothill and its counsel.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to Foothill as follows:
(a) The Borrower (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) has all
requisite corporate power, authority and legal right to execute, deliver and
perform this Amendment, and to perform the
Loan and Security Agreement, as
amended hereby;
(b) The execution, delivery and performance of this Amendment by the
Borrower, and the performance by the Borrower of the
Loan and Security
Agreement, as amended hereby (i) have been duly authorized by all necessary
corporate action, (ii) do not and will not contravene its charter or by-laws or
any applicable law and (iii) except as provided in the Loan Documents, do not
and will not result in the creation of any Lien upon or with respect to any of
its respective properties;
(c) This Amendment and the
Loan and Security Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors'
rights generally;
(d) No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority is required in connection with the due
execution,
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delivery and performance by the Borrower of this Amendment and the performance
by the Borrower of the Loan and Security Agreement as amended hereby; and
(e) The representations and warranties contained in Section 5 of the
Loan and Security Agreement and each other Loan Document, after giving effect to
this Amendment, are correct on and as of the Effective Date as though made on
and as of the Effective Date (except to the extent such representations and
warranties expressly relate to an earlier date in which case such
representations and warranties shall be true and correct as of such earlier
date), and no Default or Event of Default has occurred and is continuing on and
as of the Effective Date or will result from this Amendment becoming effective
in accordance with its terms.
5. CONTINUED EFFECTIVENESS OF THE LOAN AND SECURITY AGREEMENT AND LOAN
DOCUMENTS. The Borrower hereby (i) confirms and agrees that each Loan Document
to which it is a party is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects except that on and after
the Effective Date of this Amendment all references in any such Loan Document to
"the Loan and Security Agreement", the "Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Loan and Security
Agreement shall mean the Loan and Security Agreement as amended by this
Amendment and (ii) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to Foothill, or to grant a security
interest in or Lien on, any collateral as security for the obligations of the
Borrower from time to time existing in respect of the Loan and Security
Agreement and the Loan Documents, such pledge, assignment and/or grant of the
security interest or Lien is hereby ratified and confirmed in all respects.
6. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement.
(b) Section and paragraph headings herein are included for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
(c) This Amendment shall be governed by, and construed in accordance
with, the laws of the State of
New York.
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(d) The Borrower will pay on demand all reasonable fees, costs and
expenses of Foothill in connection with the preparation, execution and delivery
of this Amendment including, without limitation, reasonable fees, disbursements
and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to Foothill.
AXS-ONE INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx III
Title: Vice President and Chief Financial Officer
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx Sr.
Title: Vice President
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