Exhibit 10.20
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement (this "Loan Modification Agreement') is
entered into as of December 30, 2002, by and between SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and SPEECHWORKS INTERNATIONAL, INC., a Delaware corporation with its
chief executive office located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 ("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other
indebtedness and obligations which may be owing by Borrower to Bank, Borrower is
indebted to Bank pursuant to a loan arrangement dated as of December 28, 2001,
evidenced by, among other documents, a certain Amended and Restated Loan and
Security Agreement dated as of December 28, 2001 between Borrower and Bank (as
may be amended from time to time, the "Loan Agreement"), which amended and
restated a certain Loan and Security Agreement between Borrower and Bank dated
as of March 26, 1999. The Loan Agreement established: (i) an equipment line of
credit in favor of the Borrower in the maximum principal amount of Six Million
Dollars ($6,000,000.00) (the "Committed Equipment Line"), and (ii) a revolving
line of credit in favor of Borrower in the maximum principal amount of Five
Million Dollars ($5,000,000.00) (the "Committed Revolving Line"). Capitalized
terms used but not otherwise defined herein shall have the same meaning as in
the Loan Agreement.
Hereinafter, all indebtedness and obligations owing by Borrower to Bank shall be
referred to as the "Obligations".
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations 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 Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. Modifications to Loan Agreement.
1. Notwithstanding anything in the Loan Agreement or this Loan
Modification Agreement to the contrary, no more than Seven
Hundred Fifty Thousand Dollars ($750,000.00) in Equipment
Advances under the Committed Equipment Line shall be made to
Borrower after December 31, 2002.
2. The Loan Agreement is hereby amended by deleting the following
text appearing as the first sentence in Section 2.1.5(a):
"Subject to the terms and conditions of this Agreement, Bank
agrees to lend to Borrower, from time to time prior to
December 31, 2002, equipment advances (each an "Equipment
Advance" and collectively the "Equipment Advances") in an
aggregate amount not to exceed the Committed Equipment
Line."
and inserting in lieu thereof, the following:
"Subject to the terms and conditions of this Agreement, Bank
agrees to lend to Borrower, from time to time prior to June
30, 2003, equipment advances (each an "Equipment Advance"
and collectively the "Equipment Advances") in an aggregate
amount not to exceed the Committed Equipment Line."
3. The Loan Agreement is hereby amended by deleting the following
text appearing as Section 6.7 entitled "Financial Covenant":
"6.7 Financial Covenant. Borrower shall maintain at all
times, to be tested as of the last day of each month:
(a) Tangible Net Worth. A Tangible Net Worth of at
least Fifty Five Million Dollars ($55,000,000.00)."
and inserting in lieu thereof the following:
"6.7 Financial Covenant. Borrower shall maintain at all
times, to be tested as of the last day of each month:
(a) Tangible Net Worth. A Tangible Net Worth of at
least: (i) $45,000,000.00 through December 31, 2002;
(ii) $40,000,000.00 from January 1, 2003 through
March 31, 2003; (iii) $35,000,000.00 from April 1, 2003
through June 30, 2003; and (iv) $30,000,000.00 from
July 1, 2003 and at all times thereafter."
4. In connection with the Bank's rights pursuant to Section 6.2(d)
of the Loan Agreement, the Borrower shall permit the Bank to
audit the Borrower's Collateral, at Borrower's expense, on or
before March 31, 2003.
5. Effective as of December 17, 2002, the Loan Agreement is hereby
amended by deleting the following text appearing in Section 13.1
thereof entitled "Definitions":
""Prime Rate" is Bank's most recently announced "prime
rate," even if it is not Bank's lowest rate."
and inserting in lieu thereof the following:
""Prime Rate" is Bank's most recently announced "prime
rate," even if it is not Bank's lowest rate, except that at
no time under this Agreement shall the Prime Rate be less
than four and one-quarter percent (4.25%)."
6. The Loan Agreement is hereby amended by deleting the following
text appearing in Section 13.1 thereof entitled "Definitions":
""Revolving Maturity Date" is November 30, 2002."
and inserting in lieu thereof the following:
""Revolving Maturity Date" is November 29, 2003."
4. FEES. Borrower shall pay to Bank: (i) a modification fee for the Committed
Revolving Line (the "Revolving Line Fee") in an amount equal to $12,500.00,
which Revolving Line Fee shall be due and payable on the date hereof and shall
be deemed fully and earned as of the date hereof, and (ii) a modification fee
for the Committed Equipment Line (the "Equipment Line Fee") in an amount equal
to $3,750.00, which Equipment Line Fee shall be deemed fully earned as of the
date hereof and due and payable on June 30, 2003, except that the Equipment Line
Fee shall be waived by Bank in the event that aggregate Equipment Advances of at
least Five Hundred Thousand Dollars ($500,000.00) are made to Borrower on or
after January 1, 2003. The Borrower shall also reimburse Bank for all legal fees
and expenses incurred in connection with this amendment to the Existing Loan
Documents.
5. RATIFICATION OF NEGATIVE PLEDGE AGREEMENT. Borrower hereby ratifies,
confirms and reaffirms, all and singular, the terms and conditions of a certain
Negative Pledge Agreement dated as of March 26, 1999 between Borrower and Bank,
and acknowledges, confirms and agrees that said Negative Pledge Agreement shall
remain in full force and effect.
6. ADDITIONAL COVENANTS. Borrower shall not, without providing the Bank with
thirty (30) days prior
written notice: (i) relocate its principal executive office or add any new
offices or business locations or keep any Collateral in any additional
locations, or (ii) change its jurisdiction of organization, or (iii) change its
organizational structure or type, (iv) change its legal name, or (v) change any
organizational number (if any) assigned by its jurisdiction of organization. In
addition, the Borrower hereby certifies that no Collateral is in the possession
of any third party bailee (such as at a warehouse). In the event that Borrower,
after the date hereof, intends to store or otherwise deliver the Collateral to
such a bailee, then Borrower shall first receive, the prior written consent of
Bank and such bailee must acknowledge in writing that the bailee is holding such
Collateral for the benefit of Bank. Borrower hereby ratifies, confirms and
reaffirms, all and singular, the terms and disclosures contained in a certain
Perfection Certificate dated as of December 28, 2001 between Borrower and Bank,
and acknowledges, confirms and agrees the disclosures and information above
Borrower provided to Bank in the Perfection Certificate has not changed, as of
the date hereof.
7. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file financing
statements without notice to Borrower, with all appropriate jurisdictions, as
Bank deems appropriate, in order to further perfect or protect Bank's interest
in the Collateral.
8. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
9. 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 Obligations.
10. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Obligations.
11. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Obligations, 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 Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. 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.
12. RIGHT OF SET-OFF. In consideration of Bank's agreement to enter into this
Loan Modification Agreement, Borrower and any guarantor hereby reaffirm and
hereby grant to Bank, a lien, security interest and right of setoff as security
for all Obligations to Bank, whether now existing or hereafter arising upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Bank or any entity under the
control of Silicon Valley Bank or in transit to any of them. At any time after
the occurrence and during the continuance of an Event of Default, without demand
or notice, Bank may set off the same or any part thereof and apply the same to
any liability or obligation of Borrower and any guarantor even though unmatured
and regardless of the adequacy of any other collateral securing the loan. ANY
AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT
TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
13. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the 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 Xxxxx County, California.
NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE
ON THE COLLATERAL OR TO
OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER OR ITS PROPERTY.
14. 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).
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:
SPEECHWORKS INTERNATIONAL, INC. SILICON VALLEY BANK, doing business as
SILICON VALLEY EAST
By: Xxxxxxx Xxxxxxxxx By: Xxxxxxx Xxxxxxx
------------------------------- ------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxx
------------------------------- ------------------------------
Title: Chief Financial Officer Title: Vice President
------------------------------- ------------------------------
SILICON VALLEY BANK
By: Xxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxx
------------------------------
Title: AVP
------------------------------
(signed in Santa Xxxxx County,
California)
