EXHIBIT 10.52
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: PIVOTAL CORPORATION, A BRITISH COLUMBIA CORPORATION ("PARENT");
AND PIVOTAL CORPORATION, A WASHINGTON CORPORATION ("PIVOTAL US")
ADDRESS: 000 XXXXXX XXXXXX, XXXXX 000
XXXXXXXXX, XXXXXXX XXXXXXXX, XXXXXX X0X 0X0
DATE: DECEMBER 6, 2003
THIS AMENDMENT TO LOAN DOCUMENTS (THIS "AMENDMENT") is entered into
between SILICON VALLEY BANK ("Silicon"), whose main address is 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 (and with an office at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000), and the borrower(s) named above (individually and
collectively, and jointly and severally, the "Borrower"), whose chief executive
office is located at the above address ("Borrower's Address").
Silicon and Borrower agree to amend the Loan and Security Agreement
between them, dated as of December 30, 2002 (as amended, restated, supplemented,
or otherwise modified from time to time, the "Loan Agreement") and any and all
documents, instruments and agreements relating thereto (collectively, the "Loan
Documents"), all as set forth herein. (Capitalized terms used but not defined in
this Amendment, shall have the meanings set forth in the Loan Agreement.)
1. LIMITED CONSENT TO CDC SOFTWARE ACQUISITION.
(a) Borrower has advised Silicon that Parent might elect to enter into,
in lieu of (and not in addition to) the below-referenced Talisma Transaction, a
court-approved plan of arrangement under the Company Act (British Columbia),
substantially in accordance with the terms and conditions of that certain
Arrangement Agreement, dated December __, 2003, among Parent, chinadotcom
corporation, a Cayman Islands corporation ("CDC"), and CDC Software Corporation,
a Cayman Islands corporation ("CDC Software) (the "Arrangement Agreement";
Borrower hereby represents and warrants that attached hereto as Exhibit A is a
true, correct, and complete copy of the Arrangement Agreement, including all
schedules, exhibits, annexes, and appendices thereto), pursuant to which CDC
Software shall acquire all of the outstanding shares of capital stock of Parent
(such acquisition, the "CDC Software Acquisition").
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Pursuant to Section 3 of that certain Amendment to Loan Documents, dated as of
October 29, 2003, between Silicon and Borrower (the "October 2003 Amendment"),
Silicon previously consented to the "Talisma Transaction" (as defined therein)
subject to the terms and conditions set forth therein.
(b) Anything in Sections 5.5(i), and 7.1(n) of the Loan Agreement to
the contrary notwithstanding, Silicon hereby consents solely to the CDC Software
Acquisition in lieu of the Talisma Transaction; provided, however, that:
(i) nothing herein shall constitute a waiver of Silicon's
right to require such modifications (as Silicon may require in its good
faith business judgment) of the Loan Agreement based upon the
consummation of the CDC Software Acquisition.
(ii) as conditions to the effectiveness of the foregoing
consent: (A) Silicon and Borrower agree that the consent of Silicon to
the Talisma Transaction set forth in Section 3 of the October 23, 2003
Amendment shall be of no further force and effect; and (B) Silicon
shall have received a copy of the Certificate of Arrangement duly
issued by the Registrar of Companies of the Province of British
Columbia with respect to the effectiveness of the above-described CDC
Software Acquisition.
(iii) in the event Borrower enters into the Talisma
Transaction in lieu of the CDC Software Acquisition, then the foregoing
consent to the CDC Software Acquisition shall be of no further force
and effect.
(c) It is understood by Borrower and Silicon, however, that the
foregoing consent does not constitute a consent or waiver under the Loan
Agreement or the other Loan Documents in respect of any matter or set of
circumstances other than the CDC Software Acquisition, nor an agreement to
provide any consent or waiver in the future under the Loan Agreement or other
Loan Documents in respect of any matter or set of circumstances other than with
respect to the CDC Software Acquisition.
2. LIMITED CONSENT TO CDC SOFTWARE SUBORDINATED DEBT AND CDC SOFTWARE
SUBORDINATED SECURITY INTEREST.
(a) Borrower has advised Silicon that Parent might elect to enter into,
in lieu of (and not in addition to) the below-referenced Talisma Transaction, a
court-approved plan of arrangement under the Company Act (British Columbia),
substantially in accordance with the terms and conditions of that certain
Arrangement Agreement, dated December __, 2003, among Parent, chinadotcom
corporation, a Cayman Islands corporation ("CDC"), and CDC Software Corporation,
a Cayman Islands corporation ("CDC Software) (the "Arrangement Agreement";
Borrower hereby represents and warrants that attached hereto as Exhibit A is a
true, correct, and complete copy of the Arrangement Agreement, including all
schedules, exhibits, annexes, and appendices thereto), pursuant to which CDC
Software shall acquire all of the outstanding shares of capital stock of Parent
(such transaction(s), collectively, the "CDC Software Acquisition").
(b) Solely in the event that Parent enters into the CDC Software
Acquisition in lieu of the Talisma Transaction, then anything in Sections
3.4(a), 5.5(iii), and 7.1(f) of the Loan Agreement to the contrary
notwithstanding, Silicon hereby consents solely to (1) the incurrence by Parent
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(but not by any other Borrower, nor by any Subsidiary of Parent) of indebtedness
for borrowed money, in a maximum principal amount of $2,000,000, owing to CDC
Software, pursuant to that certain Break Fee Financing Agreement, dated as of
December 6, 2003, between CDC Software and Parent (the "CDC Software BFFA") and
related Demand Promissory Note, dated December __, 2003, made by Parent to the
order of CDC Software, in the original principal amount of $2,000,000 (the "CDC
Software Note"), if and to the extent such indebtedness is and remains
subordinated in favor of Silicon in accordance with the terms and conditions of
the below-referenced CDC Software Subordination Agreement (the "CDC Software
Subordinated Debt"), and (2) the grant of security interests by Parent in favor
of CDC Software pursuant to Section 3.1 of the CDC Software BFFA, if and to the
extent such security interests are and remain limited pursuant to, and are and
remain subordinated in favor of the security interests of Silicon relative to
Borrower, in accordance with the terms and conditions of Section 1 of the
below-referenced CDC Software Subordination Agreement, and, in such event, such
security interests of CDC Software described in this clause (2) shall constitute
Permitted Liens under the Loan Agreement (the "CDC Software Subordinated
Security Interest");
provided, however, that:
(i) as conditions to the effectiveness of the foregoing
consent: (A) Silicon shall receive copies of the CDC Software BFFA and
the CDC Software Note, certified by Parent to be true, correct, and
complete as of the date hereof, and (B) Silicon shall have received a
Subordination Agreement (Debt and Security Interest), in the form of
Exhibit A attached hereto (the "CDC Software Subordination Agreement"),
duly executed by CDC Software.
(ii) the occurrence and continuation of any default or event
of default under any one or more of the CDC Software BFFA, the CDC
Software Note, or any other agreement, instrument, or document by
Parent in favor of CDC Software relative to the CDC Software
Subordinated Debt or the CDC Software Subordinated Security Interest
shall constitute an Event of Default under the Loan Agreement.
(iii) the breach by CDC Software of the CDC Software
Subordination Agreement shall constitute an Event of Default under the
Loan Agreement.
(c) It is understood by Borrower and Silicon, however, that the
foregoing consent does not constitute a consent or waiver under the Loan
Agreement or the other Loan Documents in respect of any matter or set of
circumstances other than the CDC Software Subordinated Debt and the CDC Software
Subordinated Security Interest, nor an agreement to provide any consent or
waiver in the future under the Loan Agreement or other Loan Documents in respect
of any matter or set of circumstances other than with respect to the CDC
Software Subordinated Debt and the CDC Software Subordinated Security Interest.
3. AMENDMENT TO LOAN AGREEMENT.
(a) Section 4 of the Schedule to Loan Agreement, which currently reads:
4. MATURITY DATE
(SECTION 6.1): DECEMBER 15, 2003.
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, hereby is amended and restated in its entirety to read as follows:
4. MATURITY DATE
(SECTION 6.1): JANUARY 30, 2004.
4. FEES. In consideration for Bank entering into this Amendment, Borrower
shall pay Bank a fee of $6,250 (net of any portion of the $2,500 fee payable
under the prior Amendment to Loan Documents, dated October 29, 2003, between
Borrower and Silicon, that has already been received by Silicon) concurrently
with the execution and delivery of this Amendment, which fee shall be
non-refundable and in addition to all interest and other fees payable to Bank
under the Loan Documents. Bank is authorized to charge said fees to Borrower's
loan account.
5. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon that
all representations and warranties set forth in the Loan Agreement, as amended
hereby, are true and correct in all material respects (except to the extent such
representations may be affected by transactions permitted by the Loan Agreement,
as amended hereby).
6. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other Loan Documents between Silicon and 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 with respect to the subject hereof. Except as
herein expressly amended, all of the terms and provisions of the Loan Agreement,
and all other Loan Documents shall continue in full force and effect and the
same are hereby ratified and confirmed.
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7. COUNTERPARTS. This Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which, when executed
and delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same document. 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.
Borrower: Silicon:
PIVOTAL CORPORATION, a SILICON VALLEY BANK
British Columbia corporation
By_______________________________ By_______________________________
President or Vice President Title____________________________
By_______________________________
Secretary or Ass't Secretary
PIVOTAL CORPORATION, a Washington
corporation
By_______________________________
President or Vice President
By_______________________________
Secretary or Ass't Secretary
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EXHIBIT A
CDC Software Subordination Agreement [see attached]
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