MODIFICATION TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.72
MODIFICATION TO SECOND AMENDED AND
RESTATED LOAN AND
SECURITY AGREEMENT
This
Modification to Second Amended and Restated Loan and Security Agreement (this
“Modification”) is entered into by and between CHORDIANT SOFTWARE, INC.
(“Borrower”) and COMERICA
BANK (“Bank”) as of this June _30_, 2008, at San Jose,
California.
RECITALS
This
Modification is entered into upon the basis of the following facts and
understandings of the parties, which facts and understandings are acknowledged
by the parties to be true and accurate:
Bank
and Borrower previously entered into a Second Amended and Restated Loan and
Security Agreement (Accounts and Inventory) dated March 8, 2006, which was
subsequently amended pursuant to that certain letter agreement dated March 11,
2008. The Loan and Security Agreement and each modification shall
collectively be referred to herein as the “Agreement.”
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as set forth
below.
AGREEMENT
1. Incorporation by
Reference. The Recitals and the documents referred to therein are
incorporated herein by this reference. Except as otherwise noted, the
terms not defined herein shall have the meaning set forth in the
Agreement.
2. Modification to the
Agreement. Subject to the satisfaction of the conditions precedent as set
forth in Section 3 hereof, the Agreement is hereby modified as set forth
below.
(a) Clause
b. of Section 2.5 of the Agreement is hereby deleted in its entirety and
replaced with the following:
“b. In
connection with the financial accommodations provided to Borrower under this
Agreement, an annual fee in the amount of Eight Thousand Five Hundred Dollars
($8,500), which shall be due and payable in arrears on June _30_, 2009, and
which shall be fully earned and non-refundable on the date of payment
thereof. In the event that this Agreement is terminated prior to any
such payment date, Borrower shall pay to Bank the ratable portion of the annual
fee accrued since the last payment date through any such termination
date.”
(b) Section
3.1 of the Agreement is hereby deleted in its entirety and replaced with the
following:
“3.1 This
Agreement shall remain in full force and effect until June 7, 2010, unless
earlier terminated by notice by Borrower. Notice of such termination by Borrower
shall be effectuated by mailing of a registered or certified letter not less
than thirty (30) days prior to the effective date of such termination, addressed
to Bank at the address set forth herein and the termination shall be effective
as of the date so fixed in such notice.”
DELIB:2984911.3\125055-00295
(c) Notwithstanding
anything to the contrary in the Agreement, the address for all notices to the
Borrower shall be amended as follows:
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“Address
for Borrower Notices:
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00000
Xxxxxxx Xxxxx Xxxx
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Xxxxx
000
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Xxxxxxxxx,
Xxxxxxxxxx 00000
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Attention: Chief
Financial Officer
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Fax
number: (000) 000-0000”.
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3. Recertification of
Authority. Borrower certifies to Bank that:
(a) the
Amended and Restated Certificate of Incorporation and Bylaws of Borrower
delivered to Bank on or about March 8, 2006 remain in full force and effect and
have not been amended, rescinded or repealed in any respect, except the
Certificate of Amendment to Amended and Restated Certificate of Incorporation
filed with the State of Delaware, Secretary of State, Division of Corporations
on February 15, 2007 (a copy of which has been delivered to the Bank);
and
(b) Borrower
is in good standing in the State of Delaware and under each jurisdiction in
which it is authorized to do business, including the State of
California.
4. Legal Effect. The
effectiveness of this Modification is conditioned upon receipt by Bank of this
Modification, and any other documents which Bank may require to carry out the
terms hereof.
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(1)
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this
Modification and any other documents which Bank may require to carry out
the terms hereof,
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(2)
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a
commitment fee in the amount of $8,500, which shall be fully earned and
non-refundable on the date of payment thereof,
and
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(3)
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all
other fees and expenses of the Bank (including legal fees and expenses)
incurred in connection with the negotiation, investigation and drafting of
this Modification.
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Except
as specifically set forth in this Modification, all of the terms and conditions
of the Agreement remain in full force and effect.
5. Integration. This is
an integrated Modification and supersedes all prior negotiations and agreements
regarding the subject matter hereof. All amendments hereto must be in
writing and signed by the parties.
[Signatures
on Next Page]
DELIB:2984911.3\125055-00295
IN
WITNESS WHEREOF, the parties have agreed as of the date first set forth
above.
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CHORDIANT
SOFTWARE, INC.
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COMERICA
BANK
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By:
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/s/ Xxxxx
Xxxxxx
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By:
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/s/
Xxxxxx X. Xxxxx
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Its:
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CHIEF
FINANCIAL OFFICER
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Its:
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SVP
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By:
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Its:
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DELIB:2984911.3\125055-00295
