Exhibit 10.33


 


FIRST AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


This First
Amendment to Loan and Security Agreement is entered into as of August 28, 2003
(the “Amendment”), by and between COMERICA BANK, successor in interest to
COMERICA BANK – CALIFORNIA (“Bank”) and DITECH COMMUNICATIONS CORPORATION
(“Borrower”).


 


RECITALS


 


Borrower and
Bank are parties to that certain Loan and Security Agreement dated as of August
7, 2002, as amended (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 term in Section
1.1 of the Agreement is hereby amended to read as follows:


 


“Revolving Maturity Date” means July 31, 2004.


 


2. The reference
to “One Hundred Thousand Dollars ($100,000)” in Section 2.1(e) of the Agreement
is hereby amended to read as follows: “Two Hundred Thousand Dollars
($200,000)”.


 


3. The last
paragraph of Section 6.3 of the Agreement and Subsection 6.3(f) of the Agreement
are hereby deleted in their entirety.


 


4. Sections
6.7 and 6.8 of the Agreement are hereby amended in their entirety to read as
follows:


 


6.7 Accounts and Minimum Balance. Borrower shall maintain and shall
cause each of its Subsidiaries to maintain its primary depository and operating
accounts with Bank.


 


6.8  [Intentionally Omitted.]


 


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


 


6.10 Minimum Liquidity. At all times, Borrower shall maintain a balance
of unrestricted cash and cash equivalents of not less than Twenty Million
Dollars ($20,000,000).


 


6. Exhibit C
to the Agreement is hereby amended and replaced in its entirety by Exhibit C
attached hereto.


 


7. 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.


 


8. 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 which is continuing.


 


9. 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.


 


10. As a
condition to the effectiveness of this Amendment, Bank shall have received, in
form and substance satisfactory to Bank, the following:


 


1

















 


(a)          this Amendment, duly executed by Borrower;


 


(b)         an amount equal to all Bank Expenses incurred
through the date of this Amendment; and


 


(c)          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.


 


	
   

  	
  DITECH
  COMMUNICATIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  J. Tamblyn

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  VP/Chief Financial
  Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA
  BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bob
  Shutt

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  FVP – Group
  Manager

  	
   

  
					



 


2

















 


EXHIBIT C


COMPLIANCE
CERTIFICATE


 


TO: COMERICA BANK


FROM: DITECH COMMUNICATIONS
CORPORATION


 


The undersigned
authorized officer of DITECH COMMUNICATIONS CORPORATION hereby certifies that
in accordance with the terms and conditions of the Loan and Security Agreement
between Borrower and Bank (the “Agreement”), (i) Borrower is in complete
compliance for the period ending
                         
with all required covenants except as noted below and (ii) all representations
and warranties of Borrower stated in the Agreement are true and correct 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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quarterly
  financial statements

  	
   

  	
  Quarterly
  within 50 days

  	
   

  	
  Yes

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Annual (CPA
  Audited)

  	
   

  	
  FYE within 100
  days

  	
   

  	
  Yes

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10K and 10Q

  	
   

  	
  (annually
  and quarterly, as applicable)

  	
   

  	
  Yes

  	
   

  	
  No

  



 


	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maintain at
  all times (measured on a Quarterly Basis):

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minimum “Effective Tangible Net Worth”

  	
   

  	
  $

  	
  75,000,000

  	
  *

  	
  $

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  Minimum Liquidity

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
   

  	
   

  	
  Yes

  	
   

  	
  No

  



 












* Borrower shall maintain at
all times an Effective Tangible Net Worth of not less than Seventy Five Million
Dollars ($75,000,000) plus fifty percent (50%) of all proceeds received by
Borrower on or after the Closing Date from Subordinated Debt and / or the sale
or issuance of its equity securities. “Effective Tangible Net Worth” as used
herein means Tangible Net Worth minus Total Liabilities.


 


	
  Comments Regarding Exceptions: See
  Attached.

  	
   

  	
  BANK USE ONLY

  
	
   

  	
   

  	
  Received by:

  	
   

  
	
  Sincerely,

  	
   

  	
   

  	
  AUTHORIZED SIGNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
  Signature

  	
   

  	
  Verified:

  	
   

  
	
   

  	
   

  	
   

  	
  AUTHORIZED SIGNER

  
	
  Title

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
  Compliance
  Status

  	
  Yes

  	
  No

  
									



 


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