Exhibit 10.2
AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT (this
"AMENDMENT"), dated as of June 21, 2002, is entered into by and among PEREGRINE
SYSTEMS, INC., a Delaware corporation ("PARENT"), each of Parent's Subsidiaries
identified on the signature pages hereof (such Subsidiaries, together with
Parent, each a "BORROWER" and collectively, jointly and severally, the
"BORROWERS"), each of the lenders that is a signatory to this Amendment
(together with its successors and assigns, individually, a "LENDER" and,
collectively, the "LENDERS"), and FOOTHILL CAPITAL CORPORATION, a California
corporation, as the arranger and administrative agent for the Lenders (in such
capacity, together with its successors, if any, in such capacity, "AGENT" and
together with the Lenders, collectively, the "LENDER GROUP"):
W I T N E S S E T H
WHEREAS, the Borrowers and the Lender Group are parties to
that certain Loan and Security Agreement, dated as of June 12, 2002 (as amended,
restated, supplemented, or modified from time to time, the "LOAN AGREEMENT");
WHEREAS, the Borrowers have requested that the Lender Group
consent to the amendment of the Loan Agreement as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set
forth herein, the Lender Group is willing to so consent to the amendment of the
Loan Agreement on the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Loan Agreement, as
amended hereby.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) SECTION 1.1 of the Loan Agreement is hereby amended by
amending and restating the following definitions as follows:
"COMMITMENT" means, with respect to each Lender, its L/C
Commitment, its Revolver Commitment, its Term Loan Commitment, or its Total
Commitment, as the context requires, and, with respect to all Lenders, their L/C
Commitments, their Revolver Commitments, their Term Loan Commitments, or their
Total Commitments, as the context requires, in each case as such Dollar amounts
are set forth beside such Lender's name under the applicable heading on SCHEDULE
C-1 or on the signature page of the Assignment and Acceptance pursuant to which
such Lender became a Lender hereunder in accordance with the provisions of
SECTION 14.1.
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"LETTER OF CREDIT LOAN AMOUNT" means the result of (a) the
aggregate amount of funds loaned by Borrowers to Issuing Lender pursuant to
SECTION 2.12(a) of this Agreement, MINUS (b) the aggregate amount offset or
recouped by Issuing Lender in connection with a drawing of a Letter of Credit
pursuant to SECTION 2.12(a), MINUS (c) the aggregate amount (if any) of the
funds described above in clause (a) of this definition which is returned to a
Borrower for any reason.
"PRO RATA SHARE" means:
(a) with respect to a Lender's obligation to
make Advances (other than Advances made or deemed made in connection with an L/C
Disbursement) and receive payments of principal, interest, fees, costs, and
expenses with respect thereto, the percentage obtained by dividing (i) such
Lender's Revolver Commitment, by (ii) the aggregate Revolver Commitments of all
Lenders,
(b) with respect to a Lender's obligation to
participate in Letters of Credit, to reimburse the Issuing Lender, and to
receive payments of fees with respect thereto, the percentage obtained by
dividing (i) such Lender's L/C Commitment, by (ii) the aggregate L/C Commitments
of all Lenders,
(c) with respect to a Lender's obligation to
make the Term Loan and receive payments of interest, fees, and principal with
respect thereto, the percentage obtained by dividing (i) such Lender's Term Loan
Commitment, by (ii) the aggregate amount of all Lenders' Term Loan Commitments,
and
(d) with respect to all other matters (including
the indemnification obligations arising under SECTION 16.7), the percentage
obtained by dividing (i) such Lender's Total Commitment, by (ii) the aggregate
amount of Total Commitments of all Lenders; PROVIDED, HOWEVER, that, in each
case, in the event all Commitments have been terminated, Pro Rata Share shall be
determined according to the Commitments in effect immediately prior to such
termination.
"REVOLVER CONDITIONS" means that (a) no Default or Event of
Default has occurred and is continuing, (b) the condition set forth in SECTION
3.2(b) has been satisfied without regard to whether the time period permitted
thereby has elapsed, and (c) Agent has been able to syndicate (on terms and
conditions satisfactory to Agent in its sole discretion) not less than
$44,000,000 of the Total Commitment hereunder to one or more financial
institutions acceptable to Agent in its sole discretion such that the amount of
the Total Commitments hereunder is not less than $100,000,000.
"REVOLVER RESERVE" means, as of determination, (a) prior to
the satisfaction of the Revolver Conditions, (i) $100,000,000, MINUS (ii) the
Dollar amount available to be drawn under Letters of Credit issued as of such
date of determination (for the avoidance of doubt, if and when a Letter of
Credit is drawn, is reduced or expires undrawn, the Revolver Reserve would
automatically increase on a Dollar-for-Dollar basis in the amount of such
drawing, such reduction, or, in the case of a Letter of Credit expiring without
being drawn,
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the amount of such Letter of Credit), MINUS (iii) the then outstanding principal
amount of the Term Loan, and (b) after the satisfaction of the Revolver
Conditions, zero.
(b) SECTION 1.1 of the Loan Agreement is hereby amended by
inserting the following new defined terms in proper alphabetical order:
"L/C COMMITMENT" means, with respect to each Lender, its L/C
Commitment, and, with respect to all Lenders, their L/C Commitments, in each
case as such Dollar amounts are set forth beside such Lender's name under the
applicable heading on SCHEDULE C-1 or on the signature page of the Assignment
and Acceptance pursuant to which such Lender became a Lender hereunder in
accordance with the provisions of SECTION 14.1.
(c) The first sentence of SECTION 2.1(a) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
"Subject to the terms and conditions of this Agreement, and
during the term of this Agreement, each Lender with a Revolver Commitment agrees
(severally, not jointly or jointly and severally) to make advances ("ADVANCES")
to Borrowers in an amount at any one time outstanding not to exceed such
Lender's Pro Rata Share of an amount equal to the lesser of (i) the Maximum
Revolver Amount LESS the sum of (x) the then outstanding principal amount of the
Term Loan, (y) the Letter of Credit Usage, and (z) the Revolver Reserve, or (ii)
the Borrowing Base LESS the Letter of Credit Usage."
(d) SECTION 2.4(b)(i)L. and SECTION 2.4(b)(i)M. of the Loan
Agreement are hereby amended and restated in their entirety as follows:
"L. TWELFTH, if an Event of Default has occurred and is
continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing
Lender and those Lenders having an L/C Commitment, as cash collateral in an
amount up to 105% of (i) the then extant Letter of Credit Usage minus (ii) the
then extant Letter of Credit Loan Amount, until paid in full,
M. THIRTEENTH, if an Event of Default has occurred and is
continuing, to pay the outstanding principal balance of the Term Loan (to be
applied in the inverse order of the maturity of the installments due thereunder)
until the Term Loan is paid in full,"
(e) SECTION 2.6(b) of the Loan Agreement is hereby amended by
deleting the phrase "Revolver Commitment," appearing therein and replacing it
with the phrase "L/C Commitment,".
(f) SECTION 2.12(a) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(a) Subject to the terms and conditions of this Agreement,
the Issuing Lender agrees to issue letters of credit for the account of
Borrowers (each, an "L/C") or to purchase participations or execute indemnities
or reimbursement obligations (each such undertaking, an "L/C UNDERTAKING") with
respect to letters of credit issued by an Underlying Issuer (as of
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the Closing Date, the prospective Underlying Issuer is to be Xxxxx Fargo) for
the account of Borrowers. To request the issuance of an L/C or an L/C
Undertaking (or the amendment, renewal, or extension of an outstanding L/C or
L/C Undertaking), Administrative Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Lender) to the Issuing Lender and Agent (reasonably in
advance of the requested date of issuance, amendment, renewal, or extension) a
notice requesting the issuance of an L/C or L/C Undertaking, or identifying the
L/C or L/C Undertaking to be amended, renewed, or extended, the date of
issuance, amendment, renewal, or extension, the date on which such L/C or L/C
Undertaking is to expire, the amount of such L/C or L/C Undertaking, the name
and address of the beneficiary thereof (or of the Underlying Letter of Credit,
as applicable), and such other information as shall be necessary to prepare,
amend, renew, or extend such L/C or L/C Undertaking. Prior to or concurrent with
the date of each issuance of each Letter of Credit by the Issuing Lender,
Borrowers shall make a loan to the Issuing Lender in a Dollar amount equal to
105% of the requested Letter of Credit. If at any time the then extant Letter of
Credit Loan Amount is less than 105% of the then extant Letter of Credit Usage,
Borrowers shall immediately pay to Issuing Lender an amount equal to the amount
of such deficiency, which amount shall constitute a loan to Issuing Lender and
shall be added to the Letter of Credit Loan Amount. Upon receipt of the proceeds
of such loan the Issuing Lender shall not be obligated to segregate the proceeds
thereof or pay Borrowers any interest thereon. Upon the drawing under any Letter
of Credit issued by the Issuing Lender, Issuing Lender shall be entitled to
offset or recoup the amount of such drawing from such loan amount and,
thereafter, shall owe Borrowers only the net amount remaining. The Issuing
Lender shall only be obligated to repay the net amount of any such loan owing at
such time as all of the Letters of Credit have expired or have been drawn and
the Issuing Lender has been reimbursed the aggregate amount of such drawings. If
requested by the Issuing Lender, Borrowers also shall be an applicant under the
application with respect to any Underlying Letter of Credit that is to be the
subject of an L/C Undertaking. The Issuing Lender shall have no obligation to
issue a Letter of Credit if any of the following would result after giving
effect to the requested Letter of Credit:
(i) the Letter of Credit Usage would exceed the Borrowing Base
less the amount of outstanding Advances, or
(ii) the Letter of Credit Usage would exceed (y) prior to the
satisfaction of the Revolver Conditions, the lesser of (1) $20,000,000, or (2)
95.238% of the then extant Letter of Credit Loan Amount, and (z) after the
satisfaction of the Revolver Conditions, $25,000,000, or
(iii) the Letter of Credit Usage would exceed the Maximum
Revolver Amount LESS the sum of (y) the outstanding principal amount of the Term
Loan, and (z) the amount of outstanding Advances.
Borrowers and the Lender Group acknowledge and agree that
certain Underlying Letters of Credit may be issued to support letters of credit
that already are
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outstanding as of the Closing Date. Each Letter of Credit (and corresponding
Underlying Letter of Credit) shall be in form and substance acceptable to the
Issuing Lender (in the exercise of its Permitted Discretion), including the
requirement that the amounts payable thereunder must be payable in Dollars. If
(I) the then extant Letter of Credit Loan Amount is insufficient to reimburse
Issuing Lender for any L/C Disbursement, or (II) Issuing Lender is in any way
prevented from reimbursing itself for such L/C Disbursement by means of offset
or recoupment against the then extant Letter of Credit Loan Amount (including
without limitation, as a result of the operation of Section 362 of the
Bankruptcy Code in connection with an Insolvency Proceeding), and if Issuing
Lender is obligated to advance funds under a Letter of Credit, Borrowers
immediately shall reimburse such L/C Disbursement to Issuing Lender by paying to
Agent an amount equal to such L/C Disbursement not later than 11:00 a.m.,
California time, on the date that such L/C Disbursement is made, if
Administrative Borrower shall have received written or telephonic notice of such
L/C Disbursement prior to 10:00 a.m., California time, on such date, or, if such
notice has not been received by Administrative Borrower prior to such time on
such date, then not later than 11:00 a.m., California time, on the Business Day
following the date that Administrative Borrower receives such notice, and, in
the absence of such reimbursement, the L/C Disbursement immediately and
automatically shall be deemed to be an Advance hereunder and, thereafter, shall
bear interest at the rate then applicable to Advances under SECTION 2.6. To the
extent an L/C Disbursement is deemed to be an Advance hereunder, Borrowers'
obligation to reimburse such L/C Disbursement shall be discharged and replaced
by the resulting Advance. Promptly following receipt by Agent of any payment
from Borrowers pursuant to this paragraph, Agent shall distribute such payment
to the Issuing Lender or, to the extent that Lenders have made payments pursuant
to Section 2.12(c) to reimburse the Issuing Lender, then to such Lenders and the
Issuing Lender as their interest may appear."
(g) SECTION 2.12(b) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(b) Promptly following receipt of a notice of L/C
Disbursement pursuant to SECTION 2.12(a), each Lender with an L/C Commitment
agrees to fund its Pro Rata Share of any Advance deemed made pursuant to the
foregoing subsection on the same terms and conditions as if Borrowers had
requested such Advance and Agent shall promptly pay to Issuing Lender the
amounts so received by it from the Lenders. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Lender or the Lenders with
an L/C Commitment, the Issuing Lender shall be deemed to have granted to each
Lender with an L/C Commitment, and each Lender with an L/C Commitment shall be
deemed to have purchased, a participation in each Letter of Credit, in an amount
equal to its Pro Rata Share of the Risk Participation Liability of such Letter
of Credit, and each such Lender agrees to pay to Agent, for the account of the
Issuing Lender, such Lender's Pro Rata Share of any payments made by the Issuing
Lender under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender with an L/C Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Lender,
such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender
and not reimbursed by Borrowers on
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the date due as provided in clause (a) of this Section, or of any reimbursement
payment required to be refunded to Borrowers for any reason. Each Lender with an
L/C Commitment acknowledges and agrees that its obligation to deliver to Agent,
for the account of the Issuing Lender, an amount equal to its respective Pro
Rata Share pursuant to this SECTION 2.12(b) shall be absolute and unconditional
and such remittance shall be made notwithstanding the occurrence or continuation
of an Event of Default or Default or the failure to satisfy any condition set
forth in SECTION 3 hereof. If any such Lender fails to make available to Agent
the amount of such Lender's Pro Rata Share of any payments made by the Issuing
Lender in respect of such Letter of Credit as provided in this Section, Agent
(for the account of the Issuing Lender) shall be entitled to recover such amount
on demand from such Lender together with interest thereon at the Defaulting
Lender Rate until paid in full."
(h) Clause (i) of the first sentence of SECTION 3.5 of the Loan
Agreement is hereby amended and restated in its entirety as follows:
"(i) providing cash collateral to be held by Agent for the
benefit of those Lenders with an L/C Commitment in an amount equal to the result
of (A) 105% of the then extant Letter of Credit Usage, MINUS (B) the then extant
Letter of Credit Loan Amount,"
(i) Clause (i) of the first sentence of SECTION 3.6 of the Loan
Agreement is hereby amended and restated in its entirety as follows:
"(i) providing cash collateral to be held by Agent for the
benefit of those Lenders with an L/C Commitment in an amount equal to the result
of (A) 105% of the then extant Letter of Credit Usage, MINUS (B) the then extant
Letter of Credit Loan Amount,"
(j) Clause (i) of the second sentence of SECTION 3.6 of the Loan
Agreement is hereby amended and restated in its entirety as follows:
"(i) providing cash collateral to be held by Agent for the
benefit of those Lenders with an L/C Commitment in an amount equal to the result
of (A) 105% of the then extant Letter of Credit Usage, MINUS (B) the then extant
Letter of Credit Loan Amount,"
(k) SCHEDULE C-1 to the Loan Agreement is hereby amended and
restated as follows:
SCHEDULE C-1
COMMITMENTS
============================================================================================================================
LENDER REVOLVER COMMITMENT L/C COMMITMENT TERM LOAN COMMITMENT TOTAL COMMITMENT
============================================================================================================================
FOOTHILL CAPITAL $20,000,000 $20,000,000 -0- $20,000,000
CORPORATION
============================================================================================================================
ABLECO FINANCE LLC $56,000,000 -0- $56,000,000 $56,000,000
============================================================================================================================
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============================================================================================================================
ALL LENDERS $76,000,000 $20,000,000 $56,000,000 $76,000,000
============================================================================================================================
3. CONDITIONS PRECEDENT. The satisfaction of each of the following shall
constitute conditions precedent to the effectiveness of this Amendment and each
and every provision hereof:
(a) Agent shall have received an amount equal to [$19,539,624.30,]
in full in cash or in immediately available funds, which amount shall be added
to the balance of the Letter of Credit Loan Amount;
(b) Agent shall have received the Payoff Letter, in form and
substance satisfactory to Agent, duly executed and delivered by each party
thereto, and in full force and effect;
(c) The representations and warranties in the Loan Agreement and
the other Loan Documents (other than as set forth in the Disclosure Letter, to
be delivered to Agent pursuant to section 14 of Exhibit A to the Post-Closing
Matters Agreement, or with respect to events that have been expressly consented
to in writing by the Lenders since the date on which such representations and
warranties were first made) shall be true and correct in all respects on and as
of the date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
(d) No Default or Event of Default shall have occurred and be
continuing on the date hereof or as of the date of the effectiveness of this
Amendment; and
(e) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against any Obligor or the Lender Group.
4. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK.
5. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
provisions hereof, constitute the entire agreement among the parties pertaining
to the subject matter hereof. Except for the amendments to the Loan Agreement
expressly set forth in SECTION 2 hereof, the Loan Agreement and other Loan
Documents shall remain unchanged and in full force and effect. The execution,
delivery, and performance of this Amendment shall not operate as a waiver of or,
except as expressly set forth herein, as an amendment of, any right, power, or
remedy of the Lender Group as in effect prior to the date hereof. The amendments
and other agreements set forth herein are limited to the specifics hereof, shall
not apply with respect to any facts or occurrences other than those on which the
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same are based, shall not excuse future non-compliance with the Loan Agreement,
and shall not operate as a consent to any further or other matter, under the
Loan Documents. To the extent any terms or provisions of this Amendment conflict
with those of the Loan Agreement or other Loan Documents, the terms and
provisions of this Amendment shall control. This Amendment is a Loan Document.
6. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute this Amendment
by signing any such counterpart. Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
7. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment, each reference in
the Loan Agreement to "this Agreement", "hereunder", "herein", "hereof" or words
of like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in
the Loan Documents to the "Loan Agreement", "thereunder", "therein", "thereof"
or words of like import referring to the Loan Agreement shall mean and refer to
the Loan Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed and delivered as of the date first written above.
PEREGRINE SYSTEMS, INC.,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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PEREGRINE REMEDY, INC.,
a Delaware corporation
By:
--------------------------------
Name:
------------------------------
Title:
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HARBINGER HOLDINGS, INC.,
a California corporation
By:
--------------------------------
Name:
------------------------------
Title:
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PEREGRINE E-MARKETS, INC.,
a Delaware corporation
By:
--------------------------------
Name:
------------------------------
Title:
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TELCO RESEARCH CORPORATION,
a Tennessee corporation
By:
--------------------------------
Name:
------------------------------
Title:
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PEREGRINE CONNECTIVITY, INC.,
a Georgia corporation
By:
--------------------------------
Name:
------------------------------
Title:
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PEREGRINE DIAMOND, INC.,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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PEREGRINE CALIFORNIA PADRES, INC.,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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PEREGRINE ONTARIO BLUE JAYS, INC.,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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BALLGAME ACQUISITION CORPORATION,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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OCTOBER ACQUISITION CORPORATION,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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PEREGRINE BODHA, INC.,
a Delaware corporation
By:
--------------------------------
Name:
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Title:
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PEREGRINE FEDERAL SYSTEMS, INC.,
an Illinois corporation
By:
--------------------------------
Name:
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Title:
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XXXXX NETWORK SYSTEMS, LLC,
a Delaware limited liability company
By:
--------------------------------
Name:
------------------------------
Title:
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FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and
as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
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ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender, for itself and on behalf
of its Affiliate assigns
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
