**Exhibit10.33**

 

SEVENTH AMENDMENTTO LOAN AND SECURITY AGREEMENT

 

This Seventh Amendment to Loan and Security Agreement (this “Amendment”)is entered into as of July 29, 2004, by and between COMERICA BANK, successor by merger to COMERICABANK - CALIFORNIA (“Bank”) and SEEBEYOND TECHNOLOGY CORPORATION (“Borrower”).

 

RECITALS

 

Borrower and Bank are parties to that certain Loan and SecurityAgreement dated as of December 4, 2000, as amended from time to time,including by that certain Amendment to Loan and Security Agreement dated as ofJune 10, 2001, that certain Second Amendment to Loan and SecurityAgreement dated as of October 31, 2001, that certain Third Amendment toLoan and Security Agreement dated as of August 7, 2002, that certain FourthAmendment to Loan and Security Agreement dated as of December 24, 2002,that certain Fifth Amendment to Loan and Security Agreement dated as ofMarch 26, 2003 and that certain Sixth Amendment to Loan and SecurityAgreement dated as of May 30, 2003 (collectively, the “Agreement”).  The parties desire to amend the Agreement inaccordance with the terms of this Amendment.

 

NOW, THEREFORE, the parties agree as follows:

 

1.                                       The following defined terms inSection 1.1 of the Agreement hereby are amended or restated as follows:

 

“Revolving Maturity Date” means May 31, 2005.

 

2.                                       The first sentence of Section 2.1.1(a) ofthe Agreement hereby is amended and restated in its entirety to read asfollows:

 

“Subject to and upon the terms and conditions of this Agreement,Borrower may request Advances in an aggregate outstanding amount not to exceedthe Committed Line, minus the face amount of outstanding Letters of Credit,including any drawn but unreimbursed Letters of Credit.”

 

3.                                       The last sentence of the first full paragraphof Section 6.3 of the Agreement (beginning “Within thirty (30) days afterthe last day of each month in which any Advances are outstanding ...”) herebyis amended and restated in its entirety to read as follows:

 

“Within thirty (30) days after the last day of each quarter, Borrowershall deliver to Bank aged listings of accounts receivable.”

 

4.                                       The second unnumbered paragraph at the end ofSection 6.3 of the Agreement hereby is amended and restated in itsentirety to read as follows:

 

“Upon the occurrence of an Event of Default, Bank shall have the rightfrom time to time to audit Borrower’s Accounts and appraise Collateral atBorrower’s expense.”

 

5.                                       All references in the Loan Documents (exceptthe Warrant) to Bank’s address at 9920 S. La Cienega Blvd., Suite 1401, Inglewood,CA 90301, shall mean and refer to 2321 Rosecrans Ave., Suite 5000, El Segundo,CA 90245.  The reference in the Warrantto Bank’s address(es) shall mean and refer to 500 Woodward Avenue, 32nd Floor,MC 3379, Detroit, MI 48226.

 

6.                                       Section 12 of the Agreement as in effectprior to the date of this Amendment hereby is renumbered to read“Section 13,” and references to Section 12 throughout the Agreementas in effect prior to the date of this Amendment shall mean and refer to“Section 13.”  New Section 12hereby is added to the Agreement to read as follows:

 

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“12.                           JUDICIALREFERENCE.

 

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

 

12.1                           Eachcontroversy, dispute or claim (each, a “Claim”) between the parties arising outof or relating to this Agreement, any security agreement executed by Borrowerin favor of Bank, any note executed by Borrower in favor of Bank or any otherdocument, instrument or agreement executed by Borrower with or in favor of Bank(collectively in this Section, the “Loan Documents”), other than (i) allmatters in connection with nonjudicial foreclosure of security interests inreal or personal property; or (ii) the appointment of a receiver or theexercise of other provisional remedies (any of which may be initiated pursuantto applicable law) that are not settled in writing within fifteen (15) daysafter the date on which a party subject to the Loan Documents gives writtennotice to all other parties that a Claim exists (the “Claim Date”) shall beresolved by a reference proceeding in California in accordance with theprovisions of Section 638 et seq. of the California Code of CivilProcedure, or their successor sections (“CCP”), which shall constitute theexclusive 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, theparties waive the right to initiate legal proceedings against each otherconcerning each such Claim.  Venue forthese proceedings shall be in the Superior Court in the County where the realproperty, if any, is located or in a County where venue is otherwiseappropriate under state law (the “Court”). By mutual agreement, the parties shall select a retired Judge of theCourt to serve as referee, and if they cannot so agree within fifteen (15) daysafter the Claim Date, the Presiding Judge of the Court (or his or herrepresentative) shall promptly select the referee.  A request for appointment of a referee may beheard on an ex parte or expedited basis. The referee shall be appointed to sit as a temporary judge, with all thepowers of a temporary judge, as authorized by law, and upon selection shouldtake and subscribe to the oath of office as provided for in Rule 244 of theCalifornia Rules of Court (or any subsequently enacted Rule).  Each party shall have one peremptorychallenge pursuant to CCP §170.6.  Uponbeing selected, the referee shall (a) be requested to set the matter for astatus and trial-setting conference within fifteen (15) days after the date ofselection and (b) if practicable, try any and all issues of law or fact andreport a statement of decision upon them within ninety (90) days of the date ofselection.  The referee will have powerto expand or limit the amount of discovery a party may employ.  Any decision rendered by the referee will befinal, binding and conclusive, and judgment shall be entered pursuant to CCP§644 in any**court in the State ofCalifornia having jurisdiction.  Theparties shall complete all discovery no later than fifteen (15) days before thefirst trial date established by the referee. The referee may extend such period in the event of a party’s refusal toprovide requested discovery for any reason whatsoever, including, withoutlimitation, legal objections raised to such discovery or unavailability of awitness due to absence or illness.  Noparty 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 orinspection of documents within ten (10) days after service.  All disputes relating to discovery whichcannot be resolved by the parties shall be submitted to the referee whosedecision shall be final and binding upon the parties.  Pending appointment of the referee asprovided herein, the Superior Court is empowered to issue temporary and/orprovisional remedies, as appropriate.

 

12.2                           Exceptas expressly set forth herein, the referee shall determine the manner in whichthe reference proceeding is conducted including the time and place of allhearings, the order of presentation of evidence, and all other questions thatarise with respect to the course of the reference proceeding.  Except for trial, all proceedings andhearings conducted before the referee shall be conducted without a courtreporter unless a party requests a court reporter.  The party making such a request shall havethe obligation to arrange for and pay for the court reporter.  Subject to the referee’s power to award coststo the prevailing party, the parties shall equally bear the costs of the courtreporter at the trial and the referee’s expenses.

 

12.3                           The refereeshall determine all issues in accordance with existing California case andstatutory law.  California rules ofevidence applicable to proceedings at law will apply to the reference

 

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proceeding.  The referee shall be empowered to enterequitable as well as legal relief, to provide all temporary and/or provisionalremedies and to enter equitable orders that shall be binding upon theparties.  At the close of the referenceproceeding, the referee shall issue a single judgment at disposing of all theclaims of the parties that are the subject of the reference.  The parties reserve the right (i) to contestor appeal from the final judgment or any appealable order or appealablejudgment entered by the referee and (ii) to obtain findings of fact,conclusions of laws, a written statement of decision, and (iii) to move for anew trial or a different judgment, which new trial, if granted, shall be areference proceeding under this provision.

 

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

 

7.                                       Nocourse of dealing on the part of Bank or its officers, nor any failure or delayin the exercise of any right by Bank, shall operate as a waiver thereof, andany single or partial exercise of any such right shall not preclude any laterexercise of any such right.  Bank’sfailure at any time to require strict performance by a Borrower of anyprovision shall not affect any right of Bank thereafter to demand strictcompliance and performance.  Anysuspension or waiver of a right must be in writing signed by an officer ofBank.

 

8.                                       Unlessotherwise defined, all initially capitalized terms in this Amendment shall beas defined in the Agreement.  TheAgreement, as amended hereby, shall be and remain in full force and effect in accordancewith its respective terms and hereby is ratified and confirmed in allrespects.  Except as expressly set forthherein, the execution, delivery, and performance of this Amendment shall notoperate as a waiver of, or as an amendment of, any right, power, or remedy ofBank under the Agreement, as in effect prior to the date hereof.

 

9.                                       Borrowerrepresents and warrants that the Representations and Warranties contained inthe Agreement are true and correct as of the date of this Amendment, and thatno Event of Default has occurred and is continuing.

 

10.                                 As acondition to the effectiveness of this Amendment, Bank shall have received, inform and substance satisfactory to Bank, the following:

 

(a)                         thisAmendment, duly executed by Borrower;

 

(b)                        aCertificate of the Secretary of Borrower with respect to incumbency andresolutions authorizing the execution and delivery of this Amendment;

 

(c)                                  [arenewal fee in the amount of $18,750, which may be debited from any ofBorrower’s accounts;]

 

(d)                        anAffirmation of Security Agreement and Guaranty, executed by each of Borrower’ssubsidiaries, in substantially the forms attached hereto;

 

(e)                         allBank Expenses incurred through the date of this Amendment, which may be debitedfrom any of Borrower’s accounts; and

 

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

 

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

 

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

 
|   | SEEBEYOND TECHNOLOGY CORPORATION                                |
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|   |                                                            |
|   | By:                                                             |   |
|   |                                                            |
|   | Title:                                                          |   |
|   |                                                            |
|   |                                                            |
|   | COMERICA BANK, successor by merger to  COMERICA BANK-CALIFORNIA |
|   |                                                            |
|   |                                                            |
|   | By:                                                             |   |
|   |                                                            |
|   | Title:                                                          |   |
|        |                                                                 |  |  |  |

 

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