Exhibit 10.22
SECOND AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
This SECOND Amendment to AMENDED AND
RESTATED CREDIT AGREEMENT (the “Amendment”) is made and
entered into as of July 22, 2009, by and between BANK OF THE
WEST (the “Bank”) and GUIDANCE SOFTWARE, INC. (the
“Borrower”) with respect to the following:
This Amendment shall be deemed to be
a part of and subject to that certain AMENDED AND RESTATED CREDIT
AGREEMENT dated as of May 1, 2007, as it may be amended from
time to time, and any and all addenda and riders thereto
(collectively the “Agreement”). Unless otherwise
defined herein, all terms used in this Amendment shall have the
same meanings as in the Agreement. To the extent that any of the
terms or provisions of this Amendment conflict with those contained
in the Agreement, the terms and provisions contained herein shall
control.
WHEREAS, the Borrower and the Bank
mutually desire to extend and/or modify the Agreement.
NOW THEREFORE, for value received
and hereby acknowledged, the Borrower and the Bank agree as
follows:
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1.
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Additional
Provisions for Certain Defined Terms . The following new definitions are added to the
Agreement as Sections 1.1.24, 1.1.25, 1.1.26, 1.1.27 and 1.1.28
which read in their entirety as follows:
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1.1.24
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“Alternate Base
Rate” : shall mean,
for any day, a rate per annum equal to the greatest of (a) the
Prime Rate in effect on such day or, (b) the Federal Funds
Rate in effect on such day plus 1 / 2
of 1% or (c) the Applicable
Floating Rate on such date (or, if such date is not a Business Day,
the immediately preceding Business Day). Any change in the
Alternate Base Rate due to a change in the Prime Rate or, the
Federal Funds Rate or the Applicable Floating Rate shall be
effective from and including the effective date of such change in
the Prime Rate or, the Federal Funds Rate or the Applicable
Floating Rate, respectively.
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1.1.25
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“Alternate Base Rate
Advance” : shall
have the respective meaning as it is defined for each facility
under Section 2, hereof.
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1.1.26
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“Applicable Floating
Rate” : shall mean,
as of any date, (a) the One-Month LIBOR Rate on such day
multiplied by the Statutory Reserve Rate plus (b) 1.00%, where
“Statutory Reserve Rate” means a fraction (expressed as
a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal
established by the Board of Governors of the Federal Reserve System
with respect to the One-Month LIBOR Rate for Eurocurrency funding
(currently referred to as “Eurocurrencies Liabilities”
in Regulation D of the Board of Governors of the Federal Reserve
System), including those reserve percentages imposed pursuant to
Regulation D, adjusted automatically and as of the effective date
of any change in any reserve percentage.
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1.1.27
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“Federal Funds
Rate” : shall mean,
for any day, the weighted average (rounded upwards, if necessary to
the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day that is a Business Day, the
average
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(rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Bank from three Federal funds brokers
of recognized standing selected by it.
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1.1.28
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“One-Month LIBOR Rate”
: shall mean, for any day, the rate
of interest per annum that is equal to the one month LIBOR rate
appearing on the REUTERS BBA Libor Rates Page 3750 (or on any
successor or substitute page of such page) at approximately 11:00
a.m. London time on such day.
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2.
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Modification
of Interest on Advances .
Sections 2.1.4, 2.1.5, 2.1.6, 2.1.8 and 2.1.9 are deleted and
replaced in their entirety with the following:
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2.1.4
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Interest on
Advances: Interest shall accrue from the date of each Advance under
the Line of Credit at one of the following rates, as quoted by the
Bank and as elected by the Borrowers below:
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(i)
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Alternate
Base Rate Advances : At
the Alternate Base Rate plus 2.00%. Interest shall be adjusted
concurrently with any change in the Alternate Base Rate. An Advance
based upon the Alternate Base Rate is hereinafter referred to as an
“Alternate Base Rate Advance”.
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(ii)
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LIBOR
Advances : A fixed rate
quoted by the Bank for one, two or three months or for such other
period of time that the Bank may quote and offer (provided that any
such period of time does not extend beyond the Expiration Date)
(the “LIBOR Interest Period”) for Advances in the
minimum amount of $100,000.00. Such interest rate shall be a
percentage approximately equivalent to 3.00% in excess of the
Bank’s LIBOR Rate which is that rate determined by the
Bank’s Treasury Desk as being the arithmetic mean of the U.
S. dollar London Interbank Offered Rates for such period appearing
on page USD (or such other page as may replace page USD) of the
Bloomberg Financial Markets screen at or about 10:00 a.m. (New York
City time) on the second Business Day prior to the first day of
such period (adjusted for any and all assessments, surcharges and
reserve requirements) (the “LIBOR Rate”). An Advance
based upon the LIBOR Rate is hereinafter referred to as a
“LIBOR Interest on any Advance shall be computed on the basis
of 360 days per year, but charged on the actual number of days
elapsed.
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Interest on any
Advance shall be computed on the basis of 360 days per year, but
charged on the actual number of days elapsed.
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The LIBOR Rate
shall be adjusted to occur on the same day that payment is due
as
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