exv10w22w3



 




EXHIBIT 10.22.3


SECOND AMENDMENT

TO

AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


     This Second Amendment to Amended and Restated Loan and Security Agreement is entered into as
of March 31, 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, including without limitation by that certain First
Amendment to Amended and Restated Loan and Security Agreement dated as of March 19, 2004
(collectively, 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. All outstanding Equipment Advances and Facility B Equipment Advances are hereby converted
to Advances and shall be treated as Advances made under the Committed Revolving Line for all
purposes hereafter. Notwithstanding anything to the contrary in the Agreement, Borrower may not
request nor receive any further Equipment Advances or Facility B Equipment Advances.



     2. The first sentence of Section 2.1(b)(i) of the Agreement is hereby amended to read as
follows: “Subject to, and upon the terms and conditions of, this Agreement, Borrower may request
Advances in an aggregate outstanding amount not to exceed the Committed Revolving Line
minus the aggregate face amount of all outstanding Letters of Credit.”



     3. Sections 2.1 (c) and (e) of the Agreement are hereby amended in their entirety to read as
follows:



                    (c) [Intentionally Omitted.]



                    (e) [Intentionally Omitted.]



     4. The first sentence of Section 2.1(d) of the Agreement is hereby amended to read as follows:
“Subject to the terms and conditions of this Agreement, Bank agrees to issue, or cause to be
issued, letters of credit for the account of Borrower (each, a “Letter of Credit,” and
collectively, the “Letters of Credit”) in an aggregate outstanding face amount not to exceed the
amount of Advances available under Section 2.1(b)(i) at the time of any such issuance, provided
that the aggregate face amount of all outstanding Letters of Credit shall not exceed $500,000 at
any time.”



     5. Section 2.2 of the Agreement is hereby amended in its entirety to read as follows:



          2.2 [Intentionally Omitted.]



     6. Section 2.3(a)(i) of the Agreement is hereby amended in its entirety to read as follows:




                    (i) Advances. Except as set forth in Section 2.3(b), the Advances
shall bear interest, on the outstanding daily balance thereof, at a rate equal to
one half percent (0.5%) above the Prime Rate.



     7. The second and fourth paragraphs of Section 6.2 of the Agreement, labeled (a) and (c), are
hereby amended to read as follows:



1









 





                    (a) [Intentionally Omitted.]



                    (c) [Intentionally Omitted.]



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



               6.7 [Intentionally Omitted.]



     9. New Section 13 is hereby added to the Agreement to read as follows:




          13. REFERENCE PROVISION.




          If and only if the jury trial waiver set forth in Section 11 of this Agreement
is invalidated for any reason by a court of law, statute or otherwise, the reference
provisions set forth below shall be substituted in place of the jury trial waiver.
So long as the jury trial waiver remains valid, the reference provisions set forth
in this Section shall be inapplicable.




          (a) Each controversy, dispute or claim (each, a “Claim”) between the parties
arising out of or relating to this Agreement, any security agreement executed by
Borrower in favor of Bank, any note executed by Borrower in favor of Bank or any
other document, instrument or agreement executed by Borrower with or in favor of
Bank (collectively in this Section, the “Loan Documents”), other than (i) all
matters in connection with nonjudicial foreclosure of security interests in real or
personal property; or (ii) the appointment of a receiver or the exercise of other
provisional remedies (any of which may be initiated pursuant to applicable law) that
are not settled in writing within fifteen (15) days after the date on which a party
subject to the Loan Documents gives written notice to all other parties that a Claim
exists (the “Claim Date”) shall be resolved by a reference proceeding in California
in accordance with the provisions of Section 638 et seq. of the California Code of
Civil Procedure, or their successor sections (“CCP”), which shall constitute the
exclusive remedy for the resolution of any Claim concerning the Loan Documents,
including whether such Claim is subject to the reference proceeding. Except as set
forth in this section, the parties waive the right to initiate legal proceedings
against each other concerning each such Claim. Venue for these proceedings shall be
in the Superior Court in the County where the real property, if any, is located or
in a County where venue is otherwise appropriate under state law (the “Court”). By
mutual agreement, the parties shall select a retired Judge of the Court to serve as
referee, and if they cannot so agree within fifteen (15) days after the Claim Date,
the Presiding Judge of the Court (or his or her representative) shall promptly
select the referee. A request for appointment of a referee may be heard on an ex
parte or expedited basis. The referee shall be appointed to sit as a temporary
judge, with all the powers of a temporary judge, as authorized by law, and upon
selection should take and subscribe to the oath of office as provided for in Rule
244 of the California Rules of Court (or any subsequently enacted Rule). Each party
shall have one peremptory challenge pursuant to CCP §170.6. Upon being selected,
the referee shall (a) be requested to set the matter for a status and trial-setting
conference within fifteen (15) days after the date of selection and (b) if
practicable, try any and all issues of law or fact and report a statement of
decision upon them within ninety (90) days of the date of selection. The referee
will have power to expand or limit the amount of discovery a party may employ. Any
decision rendered by the referee will be final, binding and conclusive, and judgment
shall be entered pursuant to CCP §644 in any court in the State of California having
jurisdiction. The parties shall complete all discovery no later than fifteen (15)
days before the first trial date established by the referee. The referee may extend
such period in the event of a party’s refusal to provide requested discovery for any
reason whatsoever, including, without limitation, legal objections raised to such
discovery or unavailability of a witness due to absence or illness. No party shall
be entitled to “priority” in conducting discovery. Either party may take
depositions upon seven (7) days written notice, and shall respond to requests for
production or inspection of documents within ten (10) days after service. All
disputes relating to discovery which cannot be resolved by the parties shall be
submitted to the referee whose decision shall be final and binding



2









 






upon the parties. Pending appointment of the referee as provided herein, the Superior Court is empowered
to issue temporary and/or provisional remedies, as appropriate.




          (b) Except as expressly set forth herein, the referee shall determine the
manner in which the reference proceeding is conducted including the time and place
of all hearings, the order of presentation of evidence, and all other questions that
arise with respect to the course of the reference proceeding. Except for trial, all
proceedings and hearings conducted before the referee shall be conducted without a
court reporter unless a party requests a court reporter. The party making such a
request shall have the obligation to arrange for and pay for the court reporter.
Subject to the referee’s power to award costs to the prevailing party, the parties
shall equally bear the costs of the court reporter at the trial and the referee’s
expenses




          (c) The referee shall determine all issues in accordance with existing
California case and statutory law. California rules of evidence applicable to
proceedings at law will apply to the reference proceeding. The referee shall be
empowered to enter equitable as well as legal relief, to provide all temporary
and/or provisional remedies and to enter equitable orders that shall be binding upon
the parties. At the close of the reference proceeding, the referee shall issue a
single judgment disposing of all the claims of the parties that are the subject of
the reference. The parties reserve the right (i) to contest or appeal from the
final judgment or any appealable order or appealable judgment entered by the referee
and (ii) to obtain findings of fact, conclusions of laws, and a written statement of
decision, and (iii) to move for a new trial or a different judgment, which new
trial, if granted, shall be a reference proceeding under this provision.




          (d) If the enabling legislation which provides for appointment of a referee is repealed
(and no successor statute is enacted), any dispute between the parties that would otherwise
be determined by the reference procedure herein described will be resolved and determined by
arbitration conducted by a retired judge of the Court, in accordance with the California
Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The
limitations with respect to discovery as set forth in this Section shall apply to any such
arbitration proceeding.



     10. 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 Five Million
Dollars ($5,000,000).




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



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



     12. 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.



     13. 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.



3









 





     14. 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.



     15. 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) Unconditional Guaranty with Corporate Resolutions to Guaranty;



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



          (e) a nonrefundable amendment fee equal to $2,000 plus an amount equal to all Bank Expenses
incurred through the date of this Amendment; and



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



     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
	

	 	 	 	 






4









 






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
	IP Report

	 	Quarterly within 30 days
	 	 	 	Yes
	 	No
	New Contracts

	 	Quarterly within 5 days
	 	 	 	Yes
	 	No
	 
	 	 	 	 	 	 	 	 
	Financial Covenant	 	Required	 	Actual	 	Complies
	 
	 	 	 	 	 	 	 	 
	None.
	 	 	 	 	 	 	 	 








	 
	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















5