EXHIBIT 10.47
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: PIVOTAL CORPORATION, A BRITISH COLUMBIA CORPORATION ("PARENT");
AND PIVOTAL CORPORATION, A WASHINGTON CORPORATION ("PIVOTAL US")
ADDRESS: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
DATE: AUGUST 30, 2003
THIS AMENDMENT TO LOAN DOCUMENTS (THIS "AMENDMENT") is entered into
between SILICON VALLEY BANK ("Silicon"), whose main address is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (and with an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇), 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. VIOLATION OF MINIMUM QUALIFYING CASH FINANCIAL COVENANT; CSL PROVISIONS
IN EFFECT. Borrower and Bank hereby acknowledge and agree that: (a) Pivotal US
failed to maintain at all times the minimum Qualifying Cash on deposit in
Deposit Accounts of Pivotal US maintained with Silicon required under Section 5
of the Schedule to Loan Agreement; (b) such violation of the minimum Qualifying
Cash financial covenant constitutes the "Qualifying Cash CSL Provisions
Trigger"; and (c) accordingly, the CSL Provisions are effective.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) The portion of Section 1 of the Schedule to Loan Agreement that
currently reads:
1. CREDIT LIMIT
(Section 1.1): The Credit Limit equals: (a) so long as
the ABL Provisions are not in effect, an
amount
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not to exceed at any one time outstanding
the result of (i) $7,000,000 (the
"Maximum Credit Limit"), minus (ii) the
sum of (y) the amount of all outstanding
Letters of Credit (including drawn but
unreimbursed Letters of Credit) and (z)
the FX Reserve; and (b) upon the
occurrence of the ABL Provisions Trigger
and so long as the ABL Provisions are in
effect, an amount not to exceed the
result of (i) the lesser of (y) the
Maximum Credit Limit and (z) the sum of
(1) 80% (the "Advance Rate") of the
amount of Borrower's Eligible Accounts
(as defined in Section 8 above) and (2)
the amount of Restricted Pledged Cash (if
any) of Borrower, minus (ii) the sum of
(y) the amount of all outstanding Letters
of Credit (including drawn but
unreimbursed Letters of Credit) and (z)
the FX Reserve. The foregoing clause (b)
is an ABL Provision.
, hereby is amended and restated in its entirety to read as follows:
1. CREDIT LIMIT
(Section 1.1): The Credit Limit equals: (a) so long as
the ABL Provisions are not in effect, an
amount not to exceed at any one time
outstanding the result of (i) the Maximum
Credit Limit (as defined below), minus
(ii) the sum of (y) the amount of all
outstanding Letters of Credit (including
drawn but unreimbursed Letters of Credit)
and (z) the FX Reserve; and (b) upon the
occurrence of the ABL Provisions Trigger
and so long as the ABL Provisions are in
effect, an amount not to exceed the
result of (i) the lesser of (y) the
Maximum Credit Limit and (z) the sum of
(1) 80% (the "Advance Rate") of the
amount of Borrower's Eligible Accounts
(as defined in Section 8 above) and (2)
the amount of Restricted Pledged Cash (if
any) of Borrower, minus (ii) the sum of
(y) the amount of all outstanding Letters
of Credit (including drawn but
unreimbursed Letters of Credit) and (z)
the FX Reserve. The
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foregoing clause (b) is an ABL Provision.
As used herein, the term "Maximum Credit
Limit" means, as of any date of
determination: (a) $7,000,000, with
respect to any date of determination
before September 30, 2003; and (b)
$6,000,000, with respect to any date of
determination on or after September 30,
2003.
(b) The portion of Section 1 of the Schedule to Loan Agreement that
currently reads:
LETTER OF CREDIT SUBLIMIT
(Section 1.6): $7,000,000 (subject to all provisions in
this Section 1 of this Schedule relative
to the Credit Limit).
, hereby is amended and restated in its entirety to read as follows:
LETTER OF CREDIT SUBLIMIT
(Section 1.6): Subject to all provisions in this Section
1 of this Schedule relative to the Credit
Limit, the Letter of Credit Sublimit
shall be, as of any date of
determination: (a) $7,000,000, with
respect to any date of determination
before September 30, 2003; and (b)
$6,000,000, with respect to any date of
determination on or after September 30,
2003.
(c) The portion of Section 5 of the Schedule to Loan Agreement that
currently reads:
MINIMUM QUALIFYING
CASH: Without limiting the generality of the
first sentence of Section 8(1) of this
Schedule, Pivotal US shall, at all times,
maintain Qualifying Cash on deposit in
Deposit Accounts of Pivotal US maintained
with Silicon in an amount not less than:
(a) so long as the CSL Provisions are not
in effect, the Required Deposit Amount
plus the Supplemental Required Deposit
Amount; and (b) so long as the CSL
Provisions are in
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effect, the Reduced Required Deposit
Amount plus the Supplemental Required
Deposit Amount. As used herein, the term
"Required Deposit Amount" means
$9,500,000. As used herein, the term
"Reduced Required Deposit Amount" means
$3,000,000. As used herein, the term
"Qualifying Cash" means Restricted
Pledged Cash of Pivotal US or
unrestricted cash of Pivotal US, in each
case, which shall not directly or
indirectly be funded from Loans or other
extensions of credit by Silicon, and
which at all times shall be subject to
Silicon's first-priority perfected
security interest but not encumbered by
any other lien. As used herein, the term
"Supplemental Required Deposit Amount"
means, as of any date of determination,
an amount equal to: (i) until such time
(if ever) that Silicon receives all items
required under clauses (a) and (b) of
Section 8(7) of this Schedule,
$1,000,000; and (b) thereafter, $-0-.
, hereby is amended and restated in its entirety to read as follows:
MINIMUM QUALIFYING
CASH: Without limiting the generality of the
first sentence of Section 8(1) of this
Schedule, Pivotal US shall, at all times,
maintain Qualifying Cash on deposit in
Deposit Accounts of Pivotal US maintained
with Silicon in an amount not less than
the Required Deposit Amount plus the
Supplemental Required Deposit Amount As
used herein, the term "Required Deposit
Amount" means, as of any date of
determination: (a) $9,500,000, with
respect to any date of determination on
or before August 15, 2003; (b) $-0-, with
respect to any date of determination
during the period commencing August 16,
2003 and ending September 29, 2003; and
(c) $7,000,000, with respect to any date
of determination from and after September
30,
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2003. As used herein, the term
"Qualifying Cash" means Restricted
Pledged Cash of Pivotal US or
unrestricted cash of Pivotal US, in each
case, which shall not directly or
indirectly be funded from Loans or other
extensions of credit by Silicon, and
which at all times shall be subject to
Silicon's first-priority perfected
security interest but not encumbered by
any other lien. As used herein, the term
"Supplemental Required Deposit Amount"
means, as of any date of determination,
an amount equal to: (i) until such time
(if ever) that Silicon receives all items
required under clauses (a) and (c) of ---
Section 8(7) of this Schedule, $550,000;
and (b) thereafter, $-0-.
Borrower hereby acknowledges that, as of the date of this Amendment, Silicon has
not received all items required under clauses (a) and (c) of Section 8(7) of
this Schedule, and that, accordingly, the Supplemental Required Deposit Amount
is $550,000 as of the date of this Amendment.
(d) The Maximum Quarterly Net Loss financial covenant set forth in
Section 5 of the Schedule to Loan Agreement hereby is amended to change the
Maximum Quarterly Net Loss for the fiscal quarter ending September 30, 2003 from
an amount equal to $3,000,000 to an amount equal to $2,000,000.
2. FEES. In consideration for Bank entering into this Amendment, Borrower
shall pay Bank a fee of $8,250 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.
3. 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).
4. 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
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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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5. 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 British SILICON VALLEY BANK
Columbia corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- ------------------------------
President or Vice President
Title_____________________________
By
-------------------------------
Secretary or Ass't Secretary
PIVOTAL CORPORATION, a Washington
corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
President or Vice President
By
--------------------------------
Secretary or Ass't Secretary
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