**Exhibit 10.28**

** **

**COPY**

 

FIFTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT

 

This FifthAmendment to Loan and Security Agreement is entered into as of March 26, 2003(the “Amendment”), by and between COMERICA BANK-CALIFORNIA (“Bank”) andSEEBEYOND TECHNOLOGY CORPORATION (“Borrower”).

 

RECITALS

 

Borrower andBank are parties to that certain Loan and Security Agreement dated as ofDecember 4, 2000, as amended by that certain Amendment to Loan and SecurityAgreement dated as of June 10, 2001, that certain Second Amendment to Loan andSecurity Agreement dated as of October 31, 2001, that certain Third Amendmentto Loan and Security Agreement dated as of August 7, 2002, and that certainFourth Amendment to Loan and Security Agreement dated as of December 24, 2002,as amended from time to time (the “Agreement”).  The parties desire to amend the Agreement in accordance with theterms of this Amendment.

 

NOW,THEREFORE, the parties agree as follows:

 

1.             Section 2.1.3 (a) ofthe agreement is hereby revised in its entirety to read as follows:

 

“(a)         Subject to the terms andconditions of this Agreement, from the Closing Date through the RevolvingMaturity Date, Bank agrees to issue or cause to be issued letters of credit(each a “Letter of Credit,” collectively, the “Letters of Credit”) for theaccount of Borrower in an aggregate face amount not to exceed (A) the lesser ofthe Committed Revolving Line or the Borrowing Base, minus the sum of (x)the then outstanding principal balance of the Advances, and (y) the aggregateface amount of any outstanding Letters of Credit, or (B) Five MillionDollars ($5,000,000).  Each such Letterof Credit shall be renewable annually and shall have an expiration date nolater than the Revolving Maturity Date, unless prior to the Revolving Maturity Date,Borrower shall secure in cash all obligations under any outstanding Letters ofCredit on terms acceptable to Bank.  AllLetters of Credit shall be, in form and substance, acceptable to Bank in itssole discretion and shall be subject to the terms and conditions of Bank’s formof application and letter of credit agreement. All amounts actually paid by Bank in respect of a Letter of Creditshall, when paid, constitute an Advance under this Agreement.”

 

2.             Section 7.6 of theAgreement hereby is amended in its entirety to read as follows:

 

“7.6         Distributions.  Pay any cash dividends or make any otherdistribution or payment on account of or in redemption, retirement or purchaseof any capital stock, or otherwise Transfer any assets to any Affiliates.  Notwithstanding the foregoing, through March7, 2005, Borrower may repurchase up to an aggregate of $10,000,000 of itscommon stock at a price not to exceed $5.00 per share (exclusive of anycommissions or markups), so long as an Event of Default does not exist prior tosuch repurchase or would not exist after giving effect to such repurchase.”

 

3.             Section 7.7 of theAgreement hereby is amended in its entirety to read as follows:

 

“7.7         Investments.  Directly or indirectly acquire or own, ormake any Investment in or to any Person, or permit any of its Subsidiaries soto do, other than Permitted Investments. Notwithstanding the foregoing, through March 7, 2005, Borrower mayrepurchase up to an aggregate of $10,000,000 of its common stock at a price notto exceed $5.00 per share (exclusive of any commissions or markups), so long asan Event of Default does not exist prior to such repurchase or would not existafter giving effect to such repurchase.”

 

4.             Unless otherwisedefined, all initially capitalized terms in this Amendment shall be defined inthe Agreement.  The Agreement, asamended hereby, shall be and remain in full force and effect in accordance withits respective terms and hereby is ratified and confirmed in all respects.  Except as expressly set forth herein, the

 

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execution, delivery, andperformance of this Amendment shall not operate as a waiver of, or as anamendment of, any right, power, or remedy of Bank under the Agreement, as ineffect prior to the date hereof.  Borrowerratifies and reaffirms the continuing effectiveness of all promissory notes,guaranties, security agreements, mortgages, deeds of trust, environmentalagreements, and all other instruments, documents and agreements entered into inconnection with the Agreement.

 

5.             Borrower represents and warrantsthat the representations and warranties contained in the Agreement are true andcorrect as of the date of this Amendment, and that no Event of Default hasoccurred and is continuing.

 

6.             This Amendment may be executed intwo or more counterparts, each of which shall be deemed an original, but all ofwhich together shall constitute one instrument.

 

7.             As a condition to the effectivenessof this Amendment, Bank shall have received, in form and substance satisfactoryto Bank, the following:

 

(a)           this Amendment, duly executed byBorrower;

 

(b)           an Amendment fee of One Thousand FiveHundred Dollars ($1,500);

 

(c)           an amount equal to all Bank Expensesincurred to date; and

 

(d)           such other documents, and completionof such other matters, as Bank may reasonably deem necessary or appropriate

 

IN WITNESSWHEREOF, the undersigned have executed this Amendment as of the first dateabove written.

 
|   | SEEBEYOND  TECHNOLOGY CORPORATION |
|--------|-----------------------------------|
|   |                              |
|   | By:                               | /s/ Barry  Plaga |   |
|   | Title:                            | BARRY PLAGA |   |
|   |                              | SVP &  CFO |   |
|   |                              |
|   |                              |
|   | COMERICA  BANK-CALIFORNIA         |
|   |                              |
|   | By:                               | Bonnie Kehe |   |
|   |                              |
|   | Title:                            | Sr. VP |   |
|        |                                   |  |  |  |  |

 

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