Exhibit
10.33


 


SEVENTH AMENDMENT

TO 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 COMERICA
BANK - CALIFORNIA (“Bank”) and SEEBEYOND TECHNOLOGY CORPORATION (“Borrower”).


 


RECITALS


 


Borrower and Bank are parties to that certain Loan and Security
Agreement dated as of December 4, 2000, as amended from time to time,
including by that certain Amendment to Loan and Security Agreement dated as of
June 10, 2001, that certain Second Amendment to Loan and Security
Agreement dated as of October 31, 2001, that certain Third Amendment to
Loan and Security Agreement dated as of August 7, 2002, that certain Fourth
Amendment to Loan and Security Agreement dated as of December 24, 2002,
that certain Fifth Amendment to Loan and Security Agreement dated as of
March 26, 2003 and that certain Sixth Amendment to Loan and Security
Agreement dated as of May 30, 2003 (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.                                       The following defined terms in
Section 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) of
the Agreement hereby is amended and restated in its entirety 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 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 paragraph
of Section 6.3 of the Agreement (beginning “Within thirty (30) days after
the last day of each month in which any Advances are outstanding ...”) hereby
is amended and restated in its entirety to read as follows:


 


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


 


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


 


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


 


5.                                       All references in the Loan Documents (except
the 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 Warrant
to 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 effect
prior to the date of this Amendment hereby is renumbered to read
“Section 13,” and references to Section 12 throughout the Agreement
as in effect prior to the date of this Amendment shall mean and refer to
“Section 13.”  New Section 12
hereby is added to the Agreement to read as follows:


 


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“12.                           JUDICIAL
REFERENCE.


 


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.


 


12.1                           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 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.


 


12.2                           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.


 


12.3                           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


 


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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 at 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, 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.


 


12.4                           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.”


 


7.                                       No
course of dealing on the part of Bank or its officers, nor any failure or delay
in the exercise of any right by Bank, shall operate as a waiver thereof, and
any single or partial exercise of any such right shall not preclude any later
exercise of any such right.  Bank’s
failure at any time to require strict performance by a Borrower of any
provision shall not affect any right of Bank thereafter to demand strict
compliance and performance.  Any
suspension or waiver of a right must be in writing signed by an officer of
Bank.


 


8.                                       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.


 


9.                                       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.


 


10.                                 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)                        a
Certificate of the Secretary of Borrower with respect to incumbency and
resolutions authorizing the execution and delivery of this Amendment;


 


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


 


(d)                        an
Affirmation of Security Agreement and Guaranty, executed by each of Borrower’s
subsidiaries, in substantially the forms attached hereto;


 


(e)                         all
Bank Expenses incurred through the date of this Amendment, which may be debited
from any of Borrower’s accounts; and


 


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


 


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.


 


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


 


	
   

  	
  SEEBEYOND TECHNOLOGY CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK, successor by merger to

  COMERICA BANK-CALIFORNIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


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