Limited Waiver and Amendment to Loan Documents

Exhibit 10.1

 

Silicon Valley Bank

 

Limited Waiver and

Amendment to Loan Documents

 

Borrower:		InternapNetwork Services Corporation
Date:		November 18, 2004

 

 

THIS LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS (this “Amendment”) is entered into between Silicon Valley Bank (“Silicon”) and the borrower named above (“Borrower”).

 

Silicon and Borrower agree to amend the Loan and Security Agreement between them, dated October 21, 2002 (as otherwise amended, if at all, the “Loan Agreement”), as follows, effective as of the date hereof. (Capitalized terms used but not defined in this Amendment shall have the meanings set forth in the Loan Agreement.)

 

1. Waiver of Default. Borrower has advised Silicon that Borrower has failed to comply with the Minimum Cash EBITDA Financial Covenant set forth in Section 5 of the Amended and Restated Schedule to Loan and Security Agreement entitled “5. FINANCIAL COVENANTS (Section 5.1)” for the reporting period ending September 30, 2004 (the “Covenant Default”). Silicon and Borrower agree that the Borrower’s Covenant Default is hereby waived. It is understood by the parties hereto, however, that such waiver does not constitute a waiver of any other provision or term of the Loan Agreement or any related document, nor an agreement to waive in the future this covenant or any other provision or term of the Loan Agreement or any related document.

 

2. Modified EBITDA Definition. The definition of “EBITDA” set forth in Section 5 of the Amended and Restated Schedule to Loan and Security Agreement is hereby amended in its entirety to read as follows:

 

“EBITDA” shall mean Borrower’s earnings before interest, taxes, depreciation, amortization and other expenses of Borrower that are both non-recurring and non-cash expenses and Borrower’s non-cash stock option expenses, all as determined in accordance with generally accepted accounting principles, consistently applied.

 

3. Modified Form 10-Q Quarterly Reporting Requirement. The Borrower’s Form 10-Q quarterly reporting requirement set forth in paragraph 5 of Section 6 of the Amended and Restated Schedule to Loan and Security Agreement is hereby amended in its entirety to read as follows:

 

5. Borrower’s Form 10-Q, including financial statements, as soon as available, and in any event within forty-five days after the end of each fiscal quarter; provided, however, if Borrower does not satisfy the $40 Million Requirement, then monthly unaudited financial statements, as soon as available, and in any event within thirty days after the end of each month.

 

4. Representations True. Borrower represents and warrants to Silicon that all representations and warranties set forth in the Loan Agreement, as amended hereby, are true and correct as of the date hereof.

 

5. General Provisions. This Amendment, the Loan Agreement, any prior written amendments to the Loan Agreement signed by Silicon and Borrower, and the other written documents and agreements between Silicon and Borrower set forth in full all of the representations and agreements of the parties with respect to the subject matter hereof and supersede all prior discussions, representations, agreements and understandings between the parties with respect to the subject hereof. Except as herein expressly amended, all of the terms and provisions of the Loan Agreement, and all other documents and agreements between Silicon and Borrower shall continue in full force and effect and the same are hereby ratified and confirmed.

 

Borrower:   INTERNAP NETWORK SERVICES CORPORATION						Silicon:   SILICON VALLEY BANK
By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇				By		/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
		President or Vice President				Title		Senior Vice President
By		/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Secretary or Ass’t Secretary

 

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CONSENT

 

The undersigned acknowledges that the undersigned’s consent to the foregoing Amendment is not required, but the undersigned nevertheless does hereby consent to the foregoing Amendment and to the documents and agreements referred to therein and to all future modifications and amendments thereto, and any termination thereof, and to any and all other present and future documents and agreements between or among the foregoing parties. Nothing herein shall in any way limit any of the terms or provisions of the Continuing Guaranty of the undersigned, all of which are hereby ratified and affirmed.

 

CO SPACE, INC.						CO SPACE CONSTRUCTION, LLC
By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇				By:		Co Space Services, LLC, its sole member
Title		Vice President and CFO				By:		Co Space, Inc., its sole member
By		/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇				By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
		Secretary or Ass’t Secretary				Title		Vice President and CFO
CO SPACE SERVICES, INC.						CO SPACE SERVICES TEXAS, L.P.
By:		Co Space, Inc., its sole member				By:		Co Space Services, LLC, its general partner
By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇				By:		Co Space, Inc., its sole member
Title		Vice President and CFO
						By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
						Title		Vice President and CFO
CO SPACE PROPERTIES, LLC						CO SPACE PROPERTIES TEXAS, L.P.
By:		Co Space, Services, LLC, its sole member				By:		Co Space Services, LLC, its general partner
By:		Co Space, Inc., its sole member				By:		Co Space, Inc., its sole member
By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇				By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title		Vice President and CFO				Title		Vice President and CFO
▇▇▇▇.▇▇▇, INC.
By		/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title		Vice President and CFO