exv10w22w2



 




EXHIBIT 10.22.2


FIRST AMENDMENT

TO

AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT




     This First Amendment to Amended and Restated Loan and Security Agreement is entered into as of
March 19, 2004 (the “Amendment”), by and between COMERICA BANK, successor by merger to Comerica
Bank — California (“Bank”) and MANTAS, INC. (“Borrower”).



RECITALS




     Borrower and Bank are parties to that certain Amended and Restated Loan and Security Agreement
dated as of December 15, 2002, as amended (the “Agreement”). The parties desire to amend the
Agreement in accordance with the terms of this Amendment.



     NOW, THEREFORE, the parties agree as follows:



     1. The reference to “through the Revolving Maturity Date” in Section 2.1(c)(i) of the
Agreement is hereby amended to read “through December 14, 2003”.



     2. The reference to “, and any other amounts due under this Agreement,” in Section 2.1(c)(ii)
of the Agreement is hereby deleted in its entirety.



     3. A new Section 2.1(e) is hereby added to the Agreement to read as follows:



          (c) Facility B Equipment Advances.




          (i) Subject to, and upon the terms and conditions of this Agreement, at any
time from the date hereof through March 19, 2005, Bank agrees to make advances
(each, a “Facility B Equipment Advance” and, collectively, the “Facility B Equipment
Advances”) to Borrower in an aggregate amount not to exceed Two Million Dollars
($2,000,000). Each Facility B Equipment Advance shall not exceed one hundred
percent (100%) of the invoice amount of new equipment, furniture, software, and
leasehold improvements (which Borrower shall, in any case, have purchased within one
hundred twenty (120) days of the date of the corresponding Facility B Equipment
Advance), excluding taxes, shipping, warranty charges, freight discounts and
installation expenses. Facility B Equipment Advances for software and leasehold
improvements will be limited to Seven Hundred Fifty Thousand Dollars ($750,000) in
the aggregate (“Facility B Software Advances”). Facility B Equipment Advances for
equipment and furniture are hereinafter referred to as “Standard Facility B
Equipment Advances”.




          (ii) Interest shall accrue from the date of each Standard Facility B Equipment
Advance at the rate specified in Section 2.3, and shall be payable monthly on the
19th day of each month through the Facility B Equipment Maturity Date. Any Standard
Facility B Equipment Advances that are outstanding on June 19, 2004, shall be
payable in thirty-three (33) equal monthly installments of principal, plus all
accrued interest, beginning on July 19, 2004, and continuing on the same day of each
month thereafter through the Facility B Equipment Maturity Date. Any Standard
Facility B Equipment Advances that are outstanding on September 19, 2004 (which were
not outstanding on June 19, 2004), shall be payable in thirty (30) equal monthly
installments of principal, plus all accrued interest, beginning on October 19, 2004,
and continuing on the same day of each month thereafter through the Facility B
Equipment Maturity Date. Any Standard Facility B Equipment Advances that are
outstanding on December 19, 2004 (which were not outstanding on September 19, 2004),
shall be payable in twenty-seven (27) equal monthly installments of principal, plus
all accrued interest, beginning on January 19, 2005, and continuing



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on the same day of each month thereafter through the Facility B Equipment
Maturity Date. Any Standard Facility B Equipment Advances that are outstanding on
March 19, 2005 (which were not outstanding on December 19, 2004) shall be payable in
twenty-four (24) equal monthly installments of principal, plus all accrued interest,
beginning on April 19, 2005, and continuing on the same day of each month thereafter
through the Facility B Equipment Maturity Date, at which time all amounts owing
under this Section 2.1(e), and any other amounts owing under this Agreement, shall
be immediately due and payable. Standard Facility B Equipment Advances, once
repaid, may not be reborrowed. Borrower may prepay any Standard Facility B
Equipment Advances without penalty or premium.




          (iii) Interest shall accrue from the date of each Facility B Software Advance
at the rate specified in Section 2.3 hereof, and shall be payable monthly on the
19th day of each month through the Facility B Software Maturity Date.
Any Facility B Software Advances that are outstanding on June 19, 2004, shall be
payable in twenty-one (21) equal monthly installments of principal, plus all accrued
interest, beginning on July 19, 2004, and continuing on the same day of each month
thereafter through the Facility B Software Maturity Date. Any Facility B Software
Advances that are outstanding on September 19, 2004 (which were not outstanding on
June 19, 2004), shall be payable in eighteen (18) equal monthly installments of
principal, plus all accrued interest, beginning on October 19, 2004, and continuing
on the same day of each month thereafter through the Facility B Software Maturity
Date. Any Facility B Software Advances that are outstanding on December 19, 2004
(which were not outstanding on September 19, 2004), shall be payable in fifteen (15)
equal monthly installments of principal, plus all accrued interest, beginning on
January 19, 2005, and continuing on the same day of each month thereafter through
the Facility B Software Maturity Date. Any Facility B Software Advances that are
outstanding on March 19, 2005 (which were not outstanding on December 19, 2004),
shall be payable in twelve (12) equal monthly installments of principal, plus all
accrued interest, beginning on April 19, 2005, and continuing on the same day of
each month thereafter through the Facility B Software Maturity Date, at which time
all amounts due under this Section 2.1(e)(iii) shall be immediately due and payable.
Facility B Software Advances, once repaid, may not be reborrowed. Borrower may
prepay any Facility B Software Advances without penalty or premium.




          (v) When Borrower desires to obtain a Facility B Equipment Advance, Borrower
shall notify Bank (which notice shall be irrevocable) by facsimile transmission to
be received no later than 3:30 p.m. Eastern time three Business Days before the day
on which the Facility B Equipment Advance is to be made. Such notice shall be
substantially in the form of Exhibit C. The notice shall be signed by a
Responsible Officer, or a designee thereof, and shall include a copy of the invoice
for any equipment, software, furniture, or leasehold improvements to be financed.



     4. A new Section 2.3(a)(iii) is hereby added to the Agreement to read as follows:




          (iii) Facility B Equipment Advances. Except as set forth in Section
2.3(b), (A) the Standard Facility B Equipment Advances shall bear interest, on the
outstanding daily balance thereof, at a rate equal to one percent (1.0%) above the
Prime Rate, and (B) the Facility B Software Advances shall bear interest, on the
outstanding daily balance thereof, at a rate equal to two percent (2.0%) above the
Prime Rate.



     5. Section 2.5(a)(iii) of the Agreement is hereby amended in its entirety to read as follows:




          (iii) Borrower shall pay to Bank a Non-Use Fee equal to one tenth of one
percent (0.10%) per annum of the average unused portion of the availability under
the Committed Revolving Line. Such fee shall be payable in semi-annual installments
on September 19, 2004 and on the Revolving Maturity Date. Each installment shall be
calculated on the average unused portion of the Revolving Line during the preceding
six months.



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     6. Section 6.7 of the Agreement is hereby amended in its entirety to read as follows:



          6.7 Financial Covenants.




          (a) Quick Ratio. Borrower shall maintain at all times a ratio of Quick
Assets to Current Liabilities plus, to the extent not already included therein, all
Indebtedness (including without limitation any Contingent Obligations) owing from
Borrower to Bank, less deferred revenue, of at least 1.25 to 1.00. The portion of
Borrower’s Quick Assets made up of unrestricted cash shall not be less than Two
Million Dollars ($2,000,000) at any time.




          (b) Minimum New Contracts. During each quarter, the Borrower shall
enter into New Contracts having an aggregate contractual value of not less than the
following: (i) for the calendar quarter ending March 31, 2004 — $5,000,000, (ii)
for the calendar quarter ending June 30, 2004 — $9,000,000; (iii) for the calendar
quarter ending September 30, 2004 — $6,000,000; and (iv) for the calendar quarter
ending December 31, 2004 — $14,000,000. The minimum New Contracts for subsequent
years during the term hereof shall be set by the Bank on an annual basis prior to
the beginning of each calendar year, based on Borrower’s plan, which plan shall be
acceptable to Bank and shall be received by Bank on or before December 15 of each
year.



     7. The following defined terms are hereby added to or amended in Exhibit A to the
Agreement to read as follows:




          “Committed Revolving Line” means a credit extension of up to Two Million Seven
Hundred Fifty Thousand Dollars ($2,750,000).




          “Credit Extension” means each Advance, Equipment Advance, Letter of Credit,
Facility B Equipment Advance, or any other extension of credit by Bank for the
benefit of Borrower hereunder.




          “Eligible Accounts” means those Accounts that arise in the ordinary course of
Borrower’s business that comply with all of Borrower’s representations and
warranties to Bank set forth in Section 5.3; provided, that Bank may change the
standards of eligibility by giving Borrower thirty (30) days prior written notice.
Unless otherwise agreed to by Bank, Eligible Accounts shall not include the
following:




          (a) Accounts that the account debtor has failed to pay within ninety (90) days
of invoice date;




          (b) Accounts with respect to an account debtor, twenty-five percent (25%) of
whose Accounts the account debtor has failed to pay within ninety (90) days of
invoice date;




          (c) Accounts with respect to which the account debtor is an officer, employee,
or agent of Borrower;




          (d) Accounts with respect to which goods are placed on consignment, guaranteed
sale, sale or return, sale on approval, bill and hold, or other terms by reason of
which the payment by the account debtor may be conditional;




          (e) Accounts with respect to which the account debtor is an Affiliate of
Borrower;




          (f) Accounts with respect to which the account debtor does not have its
principal place of business in the United States, except for Eligible Foreign
Accounts;



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          (g) Accounts with respect to which the account debtor is the United States or
any department, agency, or instrumentality of the United States;




          (h) Accounts with respect to which Borrower is liable to the account debtor for
goods sold or services rendered by the account debtor to Borrower (including without
limitation invoices for down payments for deployment services and licenses), but
only to the extent of any amounts owing to the account debtor against amounts owed
to Borrower;




          (i) Except as otherwise provided in (j), Accounts with respect to an account
debtor, including Subsidiaries and Affiliates, whose total obligations to Borrower
exceed twenty-five percent (25%) of all Accounts, to the extent such obligations
exceed the aforementioned percentage, except as approved in writing by Bank;




          (j) Accounts with respect to a domestic account debtor, including Subsidiaries
and Affiliates, whose credit rating is at least Baa1/BBB+ from either Standard &
Poor’s Corporation or Moody’s Investors Service and whose total obligations to
Borrower exceed thirty five percent (35%) of all Accounts, to the extent such
obligations exceed the aforementioned percentage, except as approved in writing by
Bank;




          (k) Accounts with respect to which the account debtor disputes liability or
makes any claim with respect thereto as to which Bank believes, in its sole
discretion, that there may be a basis for dispute (but only to the extent of the
amount subject to such dispute or claim), or is subject to any Insolvency
Proceeding, or becomes insolvent, or goes out of business;




          (l) Credit balances over 90 days from invoice date; and




          (m) Accounts the collection of which Bank reasonably determines after inquiry
and consultation with Borrower to be doubtful.




          “Eligible Foreign Accounts” means Accounts with respect to which the account
debtor does not have its principal place of business in the United States and that
(i) are supported by one or more letters of credit or credit insurance in an amount
and of a tenor, and issued by a financial institution, acceptable to Bank, (ii)
Accounts on which the account debtor is Barclays, ABN Amro, or Banco Bilbao, or
(iii) that Bank approves on a case-by-case basis.




          “Facility B Equipment Advance” has the meaning set forth in Section 2.1(e).




          “Facility B Equipment Maturity Date” means March 19, 2007.




          “Facility B Software Maturity Date” means March 19, 2006.




          “Net Trade Accounts Receivables” means bona-fide, billed accounts receivable
net of allowances for bad debt.




          “New Contracts” means a binding contract with a new or an existing customer of
Borrower pursuant to which such customer agrees to purchase for an agreed-upon price
software, maintenance, and/or services from Borrower that such customer had not
previously purchased from Borrower, with respect to which an executed contract has
been delivered to Bank. A renewal or extension of an existing contract shall not be
considered a New Contract.




          “Quick Assets” means, at any date as of which the amount thereof shall be
determined, the unrestricted cash and cash-equivalents plus Net Trade Accounts
Receivable of Borrower determined in accordance with GAAP for private companies.




          “Revolving Maturity Date” means March 18, 2005.



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     8. Exhibit E to the Agreement is hereby amended in its entirety to read as Exhibit E
attached hereto.



     9. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as
defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and
effect in accordance with its respective terms and hereby is ratified and confirmed in all
respects. 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 Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms
the continuing effectiveness of all promissory notes, guaranties, security agreements, mortgages,
deeds of trust, environmental agreements, and all other instruments, documents and agreements
entered into in connection with the Agreement, except to the extent such security interest are
being released pursuant to Section 17 above.



     10. Borrower represents and warrants that the representations and warranties contained in the
Agreement are true and correct as of the date of this Amendment, and that no Event of Default has
occurred and is continuing.



     11. This Amendment may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one instrument.



     12. 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) Corporate Resolutions to Borrow;




          (c) disbursement instructions, an agreement to provide insurance, and auto-debit
authorizations;




          (d) a nonrefundable amendment fee equal to $7,500 plus an amount equal to all Bank Expenses
incurred through the date of this Amendment; and




          (e) such other documents, and completion of such other matters, as Bank may reasonably deem
necessary or appropriate.



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     IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above
written.



	 	 	 	 	 
	 	 	MANTAS, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	

	 	By:
	 	/s/ Daniel R. Ilisivech
	

	 	 	 	 
	 
	 	 	 	 
	

	 	Title:
	 	Chief Financial Officer
	

	 	 	 	 
	 
	 	 	 	 
	

	 	Name:
	 	Daniel R. Ilisivech
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	COMERICA BANK
	 
	 	 	 	 
	 
	 	 	 	 
	

	 	By:
	 	/s/ Bradley Steele
	

	 	 	 	 
	 
	 	 	 	 
	

	 	Title:
	 	First Vice President
	

	 	 	 	 
	 
	 	 	 	 
	

	 	Name:
	 	Bradley Steele
	

	 	 	 	 






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EXHIBIT E

COMPLIANCE CERTIFICATE




	 	 	 
	TO:

	 	COMERICA BANK
	FROM:

	 	MANTAS, INC.





The undersigned authorized officer of MANTAS, INC. hereby certifies that in accordance with the
terms and conditions of the Amended and Restated Amended and Restated Loan and Security Agreement
between Borrower and Bank (the “Agreement”), (i) Borrower is in complete compliance for the period
ending ___with all required covenants, including without limitation the ongoing
registration of intellectual property rights in accordance with Section 6.8, except as noted below
and (ii) all representations and warranties of Borrower stated in the Agreement are true and
correct in all material respects as of the date hereof. Attached herewith are the required
documents supporting the above certification. The Officer further certifies that these are
prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently
applied from one period to the next except as explained in an accompanying letter or footnotes.


Please indicate compliance status by circling Yes/No under “Complies” column.



	 	 	 	 	 	 	 	 	 
	Reporting Covenant	 	Required	 	 	 	Complies
	 
	 	 	 	 	 	 	 	 
	Monthly financial statements
	 	Monthly within 30 days	 	 	 	Yes	 	No
	Annual (CPA Audited)
	 	FYE within 120 days	 	 	 	Yes	 	No
	10K and 10Q
	 	(as applicable)	 	 	 	Yes	 	No
	A/R & A/P Agings, Borrowing Base Cert.
	 	Monthly within 20 days	 	 	 	Yes	 	No
	A/R Audit
	 	Initial and Semi-annual	 	 	 	Yes	 	No
	IP Report
	 	Quarterly within 30 days	 	 	 	Yes	 	No
	New Contracts
	 	Quarterly within 5 days	 	 	 	Yes	 	No
	 
	 	 	 	 	 	 	 	 
	Financial Covenant	 	Required	 	Actual	 	Complies
	 
	 	 	 	 	 	 	 	 
	Minimum Quick Ratio
	 	1.25:1.00*	 	____:1.00	 	Yes	 	No
	New Contracts
	 	 	 	 	 	 	 	 
	For Quarter ending 3/31/04
	 	$5,000,000	 	$—	 	Yes	 	No
	For Quarter ending 6/30/04
	 	$9,000,000	 	$—	 	Yes	 	No
	For Quarter ending 9/30/04
	 	$6,000,000	 	$—	 	Yes	 	No
	For Quarter ending 12/31/04
	 	$14,000,000	 	$—	 	Yes	 	No
	 
	 	 	 	 	 	 	 	 
	*including at least $2MM unrestricted cash
	 	 	 	 	 	 	 	 








	 
	Comments Regarding Exceptions:   See Attached.

	 

	 

	 

	Sincerely,

	 

	 

	 

	 
	SIGNATURE

	 

	 

	 
	TITLE

	 

	 

	 
	DATE















BANK USE ONLY




		
	Received by: 	 





AUTHORIZED SIGNER





		
	Date: 	 





		
	Verified: 	 





AUTHORIZED SIGNER





		
	Date: 	 






			
	 	 	 
	Compliance Status
 
	 	Yes                    No















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