Exhibit 10.19
FIRST LOAN MODIFICATION AGREEMENT
THIS FIRST LOAN MODIFICATION AGREEMENT IS ENTERED INTO AS OF NOVEMBER
22, 1999, 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 ("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.
1. MODIFICATION(S) TO LOAN AGREEMENT.
1. The Loan Agreement shall be amended by deleting the following
text appearing as paragraph (a) of Section 2.1.1 entitled
"Revolving Advances":
"(a) Bank will make Advances not exceeding the Committed
Revolving Line or the Borrowing Base, whichever is less.
Amounts borrowed under this Section may be repaid and
reborrowed during the term of this Agreement."
and inserting in lieu thereof the following:
"(a) Bank will make Advances not exceeding: (i) the Committed
Revolving Line or the Borrowing Base, whichever is less,
minus (ii) the Letter of Credit Exposure. Amounts borrowed
under this Section may be repaid and reborrowed during the
term of this Agreement."
2. The Loan Agreement shall be amended by incorporating
immediately after Section 2.1.2 thereof the following new
section entitled "Letters of Credit":
"2.1.3 LETTERS OF CREDIT.
(a) Bank shall issue from time to time one or more Letters of
Credit for Borrower's account not exceeding: (i) the
Committed Revolving
Line or the Borrowing Base, whichever is less, minus (ii) the
outstanding principal balance of the Advances, PROVIDED that
the Letter of Credit Exposure shall not exceed Two Million
Five Hundred Thousand Dollars ($2,500,000.00). Each Letter of
Credit shall expire no later than 180 days after the
Revolving Maturity Date provided Borrower's Letter of Credit
reimbursement obligation is secured by cash on terms
acceptable to Bank at any time after the Revolving Maturity
Date if the term of this Agreement is not extended by Bank.
All Letters of Credit shall be, in form and substance,
acceptable to Bank in its sole discretion and shall be
subject to the terms and conditions acceptable to the Bank.
(b) The obligation of Borrower to immediately reimburse Bank
for drawings made under Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement and
such Letters of Credit, under all circumstances whatsoever.
Borrower shall indemnify, defend, protect, and hold Bank
harmless from any loss, cost, expense or liability,
including, without limitation, reasonable attorneys' fees,
arising out of or in connection with any Letters of Credit,
other than as a result of the Bank's gross negligence or
willful misconduct.
(c) Borrower may request that Bank issue a Letter of Credit
payable in a currency other than United States Dollars. If a
demand for payment is made under any such Letter of Credit,
Bank shall treat such demand as an Advance to Borrower of the
equivalent of the amount thereof (plus cable charges) in
United States currency at the then prevailing rate of
exchange in San Francisco, California, for sales of that
other currency for cable transfer to the country of which it
is the currency.
(d) Upon the issuance of any Letter of Credit payable in a
currency other than United States Dollars, Bank shall create
a reserve (the "Letter of Credit Reserve") under the
Committed Revolving Line for letters of credit against
fluctuations in currency exchange rates, in an amount equal
to ten percent (10%) of the face amount of such letter of
credit. The amount of such reserve may be amended by Bank
from time to time to account for fluctuations in the exchange
rate. The availability of funds under the Committed Revolving
Line shall be reduced by the amount of such reserve for so
long as such Letter of Credit remains outstanding."
3. The Loan Agreement shall be amended by deleting the following
text appearing as Section 2.2 thereof entitled
"Overadvances":
"2.2 OVERADVANCES. Notwithstanding the Equipment Advances, if
Borrower's Obligations under Section 2.1.1 exceed the lesser
of the Committed Revolving Line or the Borrowing Base,
Borrower must pay in cash to Bank the excess within one (1)
Business Day after receiving notice from Bank."
and inserting in lieu thereof the following:
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"2.2 OVERADVANCES. Notwithstanding the Equipment Advances, if
Borrower's Obligations under Section 2.1.1 exceed: (i) the
Committed Revolving Line or the Borrowing Base, whichever is
less, MINUS (ii) the Letters of Credit Exposure, Borrower
must pay in cash to Bank the excess within one (1) Business
Day after receiving notice from Bank."
4. The Loan Agreement shall be amended by incorporating into
Section 9.1 entitled "Rights and Remedies" the following text
to appear immediately after paragraph (g) thereof:
"(h) Demand that Borrower (i) deposit cash with Bank in an
amount equal to the amount of any Letters of Credit remaining
undrawn, as collateral security for the repayment of any
future drawings under such Letters of Credit, and Borrower
shall forthwith deposit and pay such amounts, and (ii) pay in
advance all Letters of Credit fees scheduled to be paid or
payable over the remaining term of the Letters of Credit."
5. The Loan Agreement shall be amended by deleting the following
definition appearing in Section 13.1 thereof:
""Credit Extension" is each Advance, Equipment Advance, or
any other extension of credit by Bank for Borrower's
benefit."
and inserting in lieu thereof the following:
""Credit Extension" is each Advance, Equipment Advance,
Letter of Credit, or any other extension of credit by Bank
for Borrower's benefit."
6. The Loan Agreement shall be amended by incorporating into
Section 13.1 the following definitions:
"Letter of Credit" is a letter of credit (including, without
limitation, irrevocable, documentary and standby letters of
credit) or similar undertaking issued by Bank pursuant to
Section 2.1.3.
"Letter of Credit Reserve" has the meaning set forth in
Section 2.1.3.
"Letter of Credit Exposure" is, at any date, the sum of (a)
the aggregate face amount of all drafts that may then or
thereafter be presented by beneficiaries pursuant to issued
but undrawn Letters of Credit, plus (b) the aggregate face
amount of all drafts that the Bank has accepted under Letters
of Credit but has not been reimbursed by the Borrower.
7. The Borrower hereby ratifies, confirms and reaffirms, all and
singular, the terms and conditions of the Negative Pledge
Agreement dated as of September 16, 1999 between Borrower and
Bank, and acknowledges, confirms and agrees that said
Negative Pledge Agreement shall remain in full force and
effect.
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8. The Schedule of Permitted Indebtedness attached to the Loan
Agreement is hereby amended and restated with the Schedule of
Permitted Indebtedness attached hereto as EXHIBIT C.
9. 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.
10. 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: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO Title: AVP
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SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Loan Documentation Officer
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(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 $
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2) Additions (please explain on reverse) $
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3) TOTAL ACCOUNTS RECEIVABLE $
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ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4) Amounts over 90 days due $
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5) Balance of 50% over 90 day accounts $
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6) Concentration Limits $
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7) Credit balances over 90 days $
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8) Foreign Accounts $
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9) Governmental Accounts $
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10) Contra Accounts $
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11) Promotion or Demo Accounts $
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12) Intercompany/Employee Accounts $
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13) Other (please explain on reverse) $
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14) TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $
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15) Eligible Accounts (#3 minus #14) $
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16) LOAN VALUE OF ACCOUNTS (80.0% of #15) $
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BALANCES
17) Maximum Loan Amount $
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18) Total Funds Available (Lesser of #17 or #16) $
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19) Present balance owing on Line of Credit $
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20) Outstanding under Sublimits (LofC)* $
21) RESERVE POSITION (#18 minus #19 and #20) $
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*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:
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BANK USE ONLY
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RECEIVED BY:
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DATE:
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REVIEWED BY:
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COMPLIANCE STATUS: YES / NO
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By:
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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
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Financial statements & CC Monthly within 25 days (if not
borrowing, quarterly
w/in 25 days subsequent to IPO) 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
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
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Maintain:
Minimum Adjusted Quick Ratio* 1.25:1.0 Yes No
Minimum Tangible Net Worth** *** $ Yes No
* Tested monthly (except that subsequent to an IPO, when not borrowing,
tested quarterly)
** Tested monthly, changing to quarterly after IPO
*** See Section 6.7 of Loan Agreement
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BANK USE ONLY
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RECEIVED BY:
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DATE:
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REVIEWED BY:
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COMPLIANCE STATUS: YES / NO
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COMMENTS REGARDING EXCEPTIONS:
Sincerely,
Date:
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SIGNATURE
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TITLE
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EXHIBIT C
SCHEDULE OF PERMITTED INDEBTEDNESS
Indebtedness of the Borrower from its Directors and Officers Indemnity Insurance
Policy effective from July 20, 1999 to July 20, 2001 at a cash price of
$601,247.00, of which $480,998.00 was financed by the Borrower pursuant to a
Commercial Insurance Premium Finance and Security Agreement with Cananwill, Inc.
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