Exhibit 10.25
AMENDMENT NO. 1 TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
BETWEEN PERSISTENCE SOFTWARE, INC AND COMERICA BANK
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("AMENDMENT") is made and entered into as of November 10, 2003 by and between
PERSISTENCE SOFTWARE, INC., a Delaware corporation ("BORROWER"), and COMERICA
BANK, successor by merger to Comerica Bank-California ("BANK").
RECITALS
A. Borrower and Bank have entered into that certain Amended and Restated
Loan and Security Agreement dated as of March 20, 2003 (the "LOAN AGREEMENT")
pursuant to which Bank has agreed to extend and make available to Borrower
certain credit facilities.
B. Borrower desires that Bank amend the Loan Agreement upon the terms and
conditions more fully set forth herein.
C. Subject to the representations and warranties of Borrower herein and
upon the terms and conditions set forth in this Amendment, Bank is willing to so
amend the Loan Agreement.
D. This Amendment, the Loan Agreement and the other Loan Documents (as
defined in the Loan Agreement), together with all other documents entered into
or delivered pursuant to any of the foregoing, in each case as originally
executed or as the same may from time to time be modified, amended,
supplemented, restated or superseded are hereinafter collectively referred to as
the "LOAN DOCUMENTS."
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants herein set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, Borrower and Bank hereby agree to amend the Loan Agreement as
follows:
1. Definitions. Unless otherwise defined herein, all terms defined in the
Loan Agreement have the same meaning when used herein.
2. Amendments to Loan Agreement.
a. The Loan Agreement is hereby amended by deleting "$400,000" in
each place where that amount appears as set forth below and
substituting therefor "$45,740.02": Sections 2.1(a)(i), 2.1(c)(i)
(clauses (i) and (ii) of the proviso contained in the first
sentence), 2.2, 6.3(a), the second full paragraph of 6.3
(commencing with the words "Within fifteen (15) days.."), 6.9,
Exhibit C (line 15), and Exhibit D (three places).
b. Section 6.10 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"6.10 MINIMUM CASH BALANCE. Borrower shall maintain at all times a
balance of unrestricted cash held in the United States of at least
(i) $4,500,000 plus (ii) the aggregate amount of all outstanding
Advances. In addition, Borrower shall maintain at all times with
Bank a balance of unrestricted cash of at least the aggregate
amount of the outstanding Credit Extensions."
3. Ratification and Reaffirmation of Liens. Borrower hereby ratifies and
reaffirms the validity and enforceability of all of the liens and
security interests heretofore granted pursuant to the Loan Documents,
as collateral security for the Obligations, and acknowledges that all
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of such liens and security interests, and all Collateral heretofore
pledged as security for the Obligations, continues to be and remains
Collateral for the Obligations from and after the date hereof.
4. Representations And Warranties. Borrower represents and warrants that
its representations and warranties in the Loan Documents continue to be
true and complete in all material respects as of the date hereof after
giving effect to this Amendment (except to the extent such specifically
relate to another date) and that the execution, delivery and
performance of this Amendment are duly authorized, do not require the
consent or approval of any governmental body or regulatory authority
and are not in contravention of or in conflict with any law or
regulation or any term or provision of any other agreement entered into
by Borrower. Borrower further represents and warrants that, as of the
date hereof after giving effect to this Amendment, no Event of Default
has occurred and is continuing.
5. Full Force And Effect; Entire Agreement. Except to the extent expressly
provided in this Amendment, the terms and conditions of the Loan
Agreement and the other Loan Documents shall remain in full force and
effect. This Amendment and the other Loan Documents constitute and
contain the entire agreement of the parties hereto and supersede any
and all prior agreements, negotiations, correspondence, understandings
and communications between the parties, whether written or oral,
respecting the subject matter hereof. The parties hereto further agree
that the Loan Documents comprise the entire agreement of the parties
thereto and supersede any and all prior agreements, negotiations,
correspondence, understandings and other communications between the
parties thereto, whether written or oral respecting the extension of
credit by Bank to Borrower and/or its affiliates. Except as expressly
set forth herein, the execution, delivery and performance of this
Amendment shall not operate as a waiver of, or as an amendment of, any
right, power or remedy of Bank under the Loan Agreement or any other
Loan Document as in effect prior to the date hereof.
6. Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts, each of which when so delivered shall be deemed
an original, but all such counterparts taken together shall constitute
but one and the same instrument. This Amendment is effective as of the
date first above written; provided that, as a condition to the
effectiveness of this Amendment, Bank shall have received, in form and
substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by Borrower;
(b) all reasonable Bank Expenses incurred through the date of this
Amendment, including but not limited to, reasonable attorneys'
fees incurred in connection with this Amendment; and
(c) such other documents, and completion of such other matters, as
Bank may reasonably deem necessary or appropriate.
[signature page to follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed and delivered by its duly authorized officer as of the date first
written above.
BORROWER:
PERSISTENCE SOFTWARE, INC.,
a Delaware corporation
By: /s/ Brian Tobin
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Name: Brian Tobin
Title: Acting Chief Financial Officer
BANK:
COMERICA BANK
By: /s/ Guy Simpson
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Name: Guy Simpson
Title: Assistant Vice President
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