Exhibit 10.9
SECOND LOAN MODIFICATION AGREEMENT
This Second Loan Modification Agreement is entered into as of May 17,
2000, by and between ▇▇▇▇▇▇▇.▇▇▇, LTD., a Delaware corporation with its chief
executive office located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Borrower") and SILICON VALLEY BANK, a California-chartered bank
("Bank"), with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and with a loan production office located at Wellesley Office
Park, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, doing business under
the name "Silicon Valley East".
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan
arrangement dated September 16, 1999, evidenced by, among other documents, a
certain Loan and Security Agreement dated as of September 16, 1999 between
Borrower and Bank, as amended by a certain First Loan Modification Agreement
dated as of November 22, 1999 (as amended, the "Loan Agreement"). The Loan
Agreement established in favor of the Borrower: (i) a working capital line of
credit in the maximum principal amount of Four Million Dollars ($4,000,000.00)
(the "Committed Revolving Line"), and (ii) an equipment line of credit in the
maximum principal amount of One Million Dollars ($1,000,000.00) (the "Committed
Equipment Line"). Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness".
2. DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by the
Collateral as described in the Loan Agreement (together with any other
collateral security granted to Bank, the "Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Indebtedness shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Loan Agreement.
1. The Loan Agreement shall be amended by deleting the following text
appearing in paragraph (a) of Section 6.2 entitled "Financial
Statements, Reports, Certificates":
"(i) as soon as available, but no later than twenty-five (25)
days after the last day of each month (except that subsequent
to an IPO: (A) for months in which no Obligations are
outstanding or Credit Extensions were made, within twenty-five
(25) days after the last day of each quarter, and (B) for
months in which Obligations are outstanding or Credit
Extensions were made, within twenty-five (25) days after the
last day of each month), a company prepared consolidated
balance sheet and income statement covering Borrower's
consolidated operations during the period, in a form
acceptable to Bank and certified by a Responsible Officer;"
and inserting in lieu thereof the following:
"(i) as soon as available, but no later than: (A) monthly,
within twenty-five (25) days after the last day of each month
in which Obligations are outstanding or Credit Extensions were
made, AND (B) quarterly, within the earlier of: (1) forty-five
(45) days after the last day of each quarter, or
(2) five (5) days after filing of the Borrower's 10-Q with the
Securities and Exchange Commission, a company prepared
consolidated balance sheet and income statement covering
Borrower's consolidated operations during the period, in a
form acceptable to Bank and certified by a Responsible
Officer;"
2. The Loan Agreement shall be amended by deleting the following
text appearing as paragraph (b) of Section 6.2 entitled
"Financial Statements, Reports, Certificates":
"(b) Within twenty-five (25) days after the last day of each
month in which either (i) Obligations under the Committed
Revolving Line are outstanding, or (ii) Advances were made,
Borrower will deliver to Bank a Borrowing Base Certificate
signed by a Responsible Officer in the form of Exhibit C, with
aged listings of accounts receivable."
and inserting in lieu thereof the following:
"(b) Borrower will deliver to Bank a Borrowing Base
Certificate signed by a Responsible Officer in the form of
Exhibit C, with aged listings of accounts receivable: (i)
monthly, within twenty-five (25) days after the last day of
each month in which either Obligations under the Committed
Revolving Line are outstanding, or Advances were made, AND
(ii) quarterly, within the earlier of: (A) forty-five (45)
days after the last day of each quarter, or (B) five (5) days
after filing of the Borrower's 10-Q with the Securities and
Exchange Commission."
3. The Loan Agreement shall be amended by deleting the following
text appearing as paragraph (c) of Section 6.2 entitled
"Financial Statements, Reports, Certificates":
"(c) Within twenty-five (25) days after the last day of each
month (except that subsequent to an IPO: (i) for months in
which no Obligations are outstanding or Credit Extensions were
made, within twenty-five (25) days after the last day of each
quarter, and (ii) for months in which Obligations are
outstanding or Credit Extensions were made, within twenty-five
(25) days after the last day of each month), Borrower will
deliver to Bank with the monthly and/or quarterly financial
statements a Compliance Certificate signed by a Responsible
Officer in the form of Exhibit D."
and inserting in lieu thereof the following:
"(c) Borrower will deliver to Bank with the monthly and/or
quarterly financial statements a Compliance Certificate signed
by a Responsible Officer in the form of Exhibit D: (i)
monthly, within twenty-five (25) days after the last day of
each month in which Obligations are outstanding or Credit
Extensions were made, AND (ii) quarterly, within the earlier
of: (A) forty-five (45) days after the last day of each
quarter, or (B) five (5) days after filing of the Borrower's
10-Q with the Securities and Exchange Commission."
4. The Borrower hereby ratifies, confirms and reaffirms, all and
singular, the terms and conditions of the Negative Pledge
Agreement dated as of September 16,
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1999 between Borrower and Bank, and acknowledges, confirms and
agrees that said Negative Pledge Agreement shall remain in full
force and effect.
5. The Borrowing Base Certificate appearing as EXHIBIT C to the Loan
Agreement is hereby replaced with the Borrowing Base Certificate
attached as EXHIBIT A hereto.
6. The Compliance Certificate appearing as EXHIBIT D to the Loan
Agreement is hereby replaced with the Compliance Certificate
attached as EXHIBIT B hereto.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
5. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Indebtedness.
6. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Indebtedness.
7. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Indebtedness, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Indebtedness pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Indebtedness. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
8. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa ▇▇▇▇▇ County, California.
9. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
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This Loan Modification Agreement is executed as a sealed instrument under
the laws of the Commonwealth of Massachusetts as of the date first written
above.
BORROWER: BANK:
▇▇▇▇▇▇▇.▇▇▇, LTD. SILICON VALLEY BANK, doing business
as SILICON VALLEY EAST
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By:__________________________________
Name: ▇▇▇▇ ▇▇▇▇▇ Name:________________________________
Title: VP & Controller Title:_______________________________
SILICON VALLEY BANK
By:__________________________________
Name:________________________________
Title:_______________________________
(signed in Santa ▇▇▇▇▇ County,
California)
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EXHIBIT A
BORROWING BASE CERTIFICATE
Borrower: ▇▇▇▇▇▇▇.▇▇▇, LTD. Bank: Silicon Valley Bank
Commitment Amount: $4,000,000.00
ACCOUNTS RECEIVABLE
1) Accounts Receivable Book Value as of $______________________
2) Additions (please explain on reverse) $______________________
3) TOTAL ACCOUNTS RECEIVABLE $______________________
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4) Amounts over 90 days due $______________________
5) Balance of 50% over 90 day accounts $______________________
6) Concentration Limits $______________________
7) Credit balances over 90 days $______________________
8) Foreign Accounts $______________________
9) Governmental Accounts $______________________
10) Contra Accounts $______________________
11) Promotion or Demo Accounts $______________________
12) Intercompany/Employee Accounts $______________________
13) Other (please explain on reverse) $______________________
14) TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $______________________
15) Eligible Accounts (#3 minus #14) $______________________
16) LOAN VALUE OF ACCOUNTS (80.0% of #15) $______________________
BALANCES
17) Maximum Loan Amount $______________________
18) Total Funds Available (Lesser of #17 or
#16) $______________________
19) Present balance owing on Line of Credit $______________________
20) Outstanding under Sublimits (LofC)* $______________________
21) RESERVE POSITION (#18 minus #19 and #20) $______________________
*In accordance with the terms of the Loan and Security Agreement, as
amended
THE UNDERSIGNED REPRESENTS AND WARRANTS THAT THE FOREGOING IS TRUE, COMPLETE AND
CORRECT, AND THAT THE INFORMATION REFLECTED IN THIS BORROWING BASE CERTIFICATE
COMPLIES WITH THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE LOAN AND
SECURITY AGREEMENT BETWEEN THE UNDERSIGNED AND SILICON VALLEY BANK.
COMMENTS: ================================
BANK USE ONLY
RECEIVED BY:____________________
--------------------------- DATE:________________
REVIEWED BY:____________________
COMPLIANCE STATUS: YES / NO
By: ================================
--------------------------
Authorized Signer
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EXHIBIT B
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM: ▇▇▇▇▇▇▇.▇▇▇, LTD.
The undersigned authorized officer of ▇▇▇▇▇▇▇.▇▇▇, LTD. 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 in all material respects 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. The Officer expressly acknowledges that no
borrowings may be requested by the Borrower at any time or date of determination
that Borrower is not in compliance with any of the terms of the Agreement, and
that such compliance is determined not just at the date this certificate is
delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
Financial statements & CC Monthly within 25 days when
borrowing; Yes No
AND quarterly w/in earlier
of 45 days of QE
or 5 days of 10-Q filing Yes No
Annual (CPA Audited) FYE within 90 days Yes ▇▇
▇▇-▇, ▇▇-▇ ▇▇▇ ▇-▇ ▇/▇▇ ▇ days after filing
with SEC Yes No
BBC & A/R Agings Monthly within 25 days when
borrowing; Yes No
AND quarterly w/in earlier
of 45 days of QE
or 5 days of 10-Q filing Yes No
FINANCIAL COVENANT REQUIRED ACTUAL
COMPLIES
Maintain:
Minimum Adjusted Quick Ratio* 1.25:1.0 ___________ Yes No
Minimum Tangible Net Worth** $10,000,000.00
$___________ Yes No
*Tested monthly when borrowing, otherwise tested quarterly)
**Tested quarterly
COMMENTS REGARDING EXCEPTIONS: =================================
BANK USE ONLY
Sincerely, RECEIVED BY:____________________
DATE:________________
_______________________ Date:_________ REVIEWED BY:____________________
SIGNATURE COMPLIANCE STATUS: YES / NO
------------------------ =================================
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