Exhibit 10.1
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER(S): MOBILITY ELECTRONICS, INC.
PORTSMITH, INC.
MAGMA, INC.
DATE: AS OF JANUARY 31, 2003
THIS AMENDMENT TO LOAN DOCUMENTS (THIS "AMENDMENT") is entered into
between SILICON VALLEY BANK ("Bank"), whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the borrower(s) named above (individually and
collectively, and jointly and severally, the "Borrower").
Bank and Borrower agree to amend the Loan and Security Agreement
between them, dated as of September 27, 2002 (as amended, restated,
supplemented, or otherwise modified from time to time, 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 (as
amended by this Amendment):
1. VIOLATIONS OF SECTIONS 5.1(a) AND 5.1(b) OF SCHEDULE TO LOAN
AGREEMENT; ASSET BASED TERMS IN EFFECT. Borrower and Bank hereby acknowledge and
agree that: (a) Parent (on a consolidated basis) failed, as of November 30,
2002, to maintain the minimum adjusted quick ratio required under Section 5.1(a)
of the Schedule to Loan Agreement; (b) Parent (on a consolidated basis) failed,
as of September 30, 2002, to maintain the minimum EBITDA required under Section
5.1(b) of the Schedule to Loan Agreement; (c) pursuant to Section 6.3 of the
Schedule to Loan Agreement, either or both of such violations may trigger the
effectiveness of the Asset Based Terms upon Bank's written notice thereof to
Parent; and (d) Bank hereby notifies Parent and the other Borrowers, and Parent
and the other Borrowers hereby accept such notification, that the Asset Based
Terms are effective.
2. LIMITED WAIVER. Bank and Borrower hereby agree that any
failure of Parent (on a consolidated basis) to maintain the minimum Tangible Net
Worth required under Section 5.1(c) or 5.2 of the Schedule to Loan Agreement
solely for one or more of the months ended September 30, 2002, October 31, 2002,
November 30, 2002, and December 31, 2002 (collectively, the "Designated
Default") hereby is waived. It is understood, however, that the foregoing waiver
of the Designated Default does not constitute a waiver of the aforementioned
covenants with respect to any other date or time period, or of any other
provision or term of the Loan Agreement or any related document, nor an
agreement to waive in the future such covenants with respect to any other date
or time period or any other provision or term of the Loan Agreement or any
related document.
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
3. AMENDMENTS TO LOAN AGREEMENT.
(a) Anything in the Loan Agreement to the contrary
notwithstanding, the Inventory Sublimit shall equal Zero Dollars ($-0-), unless
and until Bank receives evidence, satisfactory to Bank, that, with respect to
any fiscal quarter of Parent commencing on or after January 1, 2003, Parent (on
an consolidated basis) shall have maintained a Tangible Net Worth of not less
than Thirteen Million Dollars ($13,000,000) at all times during such fiscal
quarter.
(b) The portion of Section 5.1(c) of the Schedule to Loan
Agreement that currently reads as follows:
"Parent (on a consolidated basis) shall maintain a Tangible
Net Worth of not less than $13,000,000 (the "Minimum
Tangible Net Worth"), as of the end of each month,
provided that, at the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending
September 30, 2002, the Minimum Tangible Net Worth
requirement shall be increased by 100% of the net income
of the Parent (on a consolidated basis) for such fiscal
quarter, but the Minimum Tangible Net Worth requirement
shall not increase to greater than $17,000,000. Said
increased Minimum Tangible Net Worth requirement shall be
effective as of the end of such fiscal quarter, and shall
continue in effect thereafter. In no event shall the
Minimum Tangible Net Worth requirement be decreased."
, hereby is amended and restated in its entirety to read as follows:
"Parent (on a consolidated basis) shall maintain a Tangible
Net Worth of not less than $10,500,000 (the "Minimum
Tangible Net Worth"), as of the end of each month,
provided that, at the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending March
31, 2003, the Minimum Tangible Net Worth requirement shall
be increased by 100% of the net income of the Parent (on a
consolidated basis) for such fiscal quarter, but the
Minimum Tangible Net Worth requirement shall not increase
to greater than $17,000,000. Said increased Minimum
Tangible Net Worth requirement shall be effective as of
the end of such fiscal quarter, and shall continue in
effect thereafter. In no event shall the Minimum Tangible
Net Worth requirement be decreased."
(c) The portion of Section 5.2 of the Schedule to Loan
Agreement that currently reads as follows:
"Parent (on a consolidated basis) shall maintain a Tangible
Net Worth of not less than $13,000,000 (the "Minimum
Tangible Net Worth"), as of the end of each month,
provided that, at the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending
September 30, 2002, the Minimum Tangible Net Worth
requirement shall be increased by 100% of the net income
of the Parent (on a consolidated basis) for such fiscal
quarter, but the Minimum Tangible Net Worth requirement
shall not increase to greater than $17,000,000. Said
increased Minimum Tangible Net Worth requirement shall
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
be effective as of the end of such fiscal quarter, and
shall continue in effect thereafter. In no event shall the
Minimum Tangible Net Worth requirement be decreased."
, hereby is amended and restated in its entirety to read as follows:
"Parent (on a consolidated basis) shall maintain a Tangible
Net Worth of not less than $10,500,000 (the "Minimum
Tangible Net Worth"), as of the end of each month,
provided that, at the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending March
31, 2003, the Minimum Tangible Net Worth requirement shall
be increased by 100% of the net income of the Parent (on a
consolidated basis) for such fiscal quarter, but the
Minimum Tangible Net Worth requirement shall not increase
to greater than $17,000,000. Said increased Minimum
Tangible Net Worth requirement shall be effective as of
the end of such fiscal quarter, and shall continue in
effect thereafter. In no event shall the Minimum Tangible
Net Worth requirement be decreased."
(d) Section 6.4 of the Schedule to Loan Agreement, which
currently reads as follows:
"6.4 Conversion Back to Non-Asset Based Terms. In the
event the Asset Based Terms are in effect, Parent may
convert back to the Non-Asset Based Terms by giving
Bank 30 days prior written notice thereof, provided
that, at the date the notice is given and at the date
the conversion is to go into effect (i) no default or
Event of Default has occurred and is continuing, (ii)
the total outstanding principal balance of the
Advances and all outstanding Letters of Credit does
not exceed $5,000,000, (iii) Parent has met the
financial covenants set forth in Section 5.1 above
throughout the most-recent ending fiscal quarter and
provides evidence of the same to the Bank
satisfactory to the Bank, and (iv) the Bank approves
the conversion to the Non-Asset Based Terms in its
good faith business judgment."
, hereby is amended and restated in its entirety to read as follows:
"6.4 Conversion Back to Non-Asset Based Terms. In the
event the Asset Based Terms are in effect, Parent may
convert back to the Non-Asset Based Terms by giving
Bank 30 days prior written notice thereof, provided
that, at the date the notice is given and at the date
the conversion is to go into effect: (i) no default
or Event of Default has occurred and is continuing;
(ii) the total outstanding principal balance of the
Advances and all outstanding Letters of Credit does
not exceed $5,000,000; (iii) Parent (on a
consolidated basis) has met the financial covenants
set forth in Section 5.1 above throughout the
most-recent ending fiscal quarter (notwithstanding
that Section 5.1 by its terms would apply while the
Asset Based Terms are not in effect) and provides
evidence of the same to the Bank satisfactory to the
Bank; (iv) Parent (on an consolidated basis) shall
have maintained a Tangible Net Worth of not less than
Thirteen Million Dollars
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
($13,000,000) throughout the most-recent ending
fiscal quarter and provides evidence of the same to
the Bank satisfactory to the Bank; and (v) the Bank
approves the conversion to the Non-Asset Based Terms
in its good faith business judgment."
(e) The definition of "Guarantor" set forth in Section 13.1 of
the Loan Agreement, which currently reads as follows:
" "Guarantor" is any present or future guarantor of any of
the Obligations, including Cutting Edge Software, Inc.."
, hereby is amended and restated in its entirety to read as follows:
" "Guarantor" is any present or future guarantor of any of
the Obligations, including Cutting Edge Software, Inc. and
iGo Direct Corporation."
(f) The portion of Section 8.10 of the Loan Agreement that
currently reads as follows:
"Any guaranty of any Obligations ceases for any reason to
be in full force or any Guarantor does not perform any
obligation under any guaranty of any of the Obligations, or
any material misrepresentation or material misstatement
exists now or later in any warranty or representation in
any guaranty of the Obligations or in any certificate
delivered to Bank in connection with the guaranty, or any
circumstance described in Sections 8.5, 6 or 8 occurs to
any Guarantor."
, hereby is amended and restated in its entirety to read as follows:
"Any guaranty of any Obligations ceases for any reason to
be in full force or any Guarantor does not perform any
obligation under any guaranty of any of the Obligations or
any other Loan Document, or any material misrepresentation
or material misstatement exists now or later in any
warranty or representation in any guaranty of the
Obligations or any other Loan Document or in any
certificate delivered to Bank in connection with any such
guaranty or any other Loan Document, or any circumstance
described in Sections 8.5, 8.6 or 8.8 occurs with respect
to any Guarantor, mutatis mutandis."
(g) Anything in the Loan Agreement to the contrary
notwithstanding, Borrower shall have Excess Availability (as defined herein) of
not less than $1,500,000 at all times until and including April 15, 2003. As
used herein, the term "Excess Availability" means, as of any date of
determination, the amount, as determined by Bank in its good faith business
judgment, equal to the aggregate Advances and other extensions of credit
available to the Borrower under the Loan Agreement (after deduction of all
applicable reserves).
4. LIMITED CONSENT TO PERMITTED iGO ACQUISITION. Anything in the
Loan Agreement to the contrary notwithstanding, Bank hereby consents to the
formation by Parent of IGOC Acquisition, Inc., a Delaware corporation, as a
wholly-owned Subsidiary of Parent and the
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
merger of iGo Corporation, a Delaware corporation, with and into IGOC
Acquisition, Inc., with IGOC Acquisition, Inc., now known as iGo Direct
Corporation ("iGo"), as the surviving corporation of such merger, substantially
in accordance with the terms and conditions of that certain Agreement and Plan
of Merger, dated as of March 23, 2002, among Parent, iGo (then known as IGOC
Acquisition, Inc.), and iGo Corporation, as amended by that certain Amendment
No. 1 to Agreement and Plan of Merger, dated as of July 18, 2002, among those
same parties (collectively, the "iGo Acquisition Agreement", a copy of which is
included with Parent's SEC filings of public record) (such merger, the
"Permitted iGo Acquisition"); provided, however, that, as conditions to the
effectiveness of such consent (which, upon satisfaction of such conditions,
shall have effect from and after the date hereof):
(a) Bank shall have received lien searches listing all
effective financing statements which name iGo Corporation, IGOC
Acquisition, Inc., or iGo Direct Corporation as debtor that are filed
in the applicable filing offices, none of which financing statements
shall cover any of the assets of iGo Acquisition, except (i) Permitted
Liens, (ii) financing statements as to which Bank has received duly
executed termination statements in form and substance satisfactory to
Bank, or (iii) as otherwise agreed in writing by Bank. Anything in the
Loan Documents to the contrary notwithstanding, iGo may not merge or
consolidate with any Borrower or any other Guarantor, and no assets
(other than assets that are immaterial, either individually or in the
aggregate) may be Transferred between, on the one hand, any Borrower or
any other Guarantor, and, on the other hand, iGo, in each case, unless
and until the condition in this clause (a) is satisfied.
(b) Silicon shall have received each of the following
documents, in form and substance satisfactory to Bank and duly executed
by iGo: (i) a guaranty agreement in favor of the Bank relative to the
Obligations; (ii) a security agreement in favor of the Bank, pursuant
to which iGo grants to Bank security interests in all or substantially
all personal property of iGo in order to secure all obligations of iGo
owing to Bank; and (iii) an intellectual property security agreement in
favor of the Bank relative to the intellectual property collateral of
iGo described therein.
The foregoing limited consent shall not constitute a waiver of any of the other
terms or provisions of the Loan Agreement or any other Loan Documents, nor
constitute a consent to any other transaction, whether or not similar to the
foregoing.
5. LIMITED CONSENT TO ▇▇▇▇▇▇▇ SUBORDINATED NOTE. Anything in the
Loan Agreement to the contrary notwithstanding, Bank hereby consents to the
incurrence by Parent of unsecured indebtedness owing to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇") under that certain Convertible Subordinated Promissory Note, dated
November 13, 2002, by Parent to the order of ▇▇▇▇▇▇▇, in the original principal
amount of $990,000.00 (the "▇▇▇▇▇▇▇ Note; Borrower hereby represents and
warrants that attached hereto as Exhibit A are true, correct, and complete
copies of the ▇▇▇▇▇▇▇ Note and all other material documents relating thereto)
(such unsecured indebtedness, the "Permitted ▇▇▇▇▇▇▇ Subdebt"); provided,
however, that, as conditions to the effectiveness of such consent (which, upon
satisfaction of such conditions, shall have effect from and after the date
hereof): (a) Bank shall receive a subordination agreement, in form and substance
satisfactory to Bank, duly executed by ▇▇▇▇▇▇▇ relative to the Permitted ▇▇▇▇▇▇▇
Subdebt and acknowledged by Borrower (the "▇▇▇▇▇▇▇ Subordination Agreement");
and (b) Borrower hereby covenants and
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
agrees that Borrower shall not make any payments in respect of the Permitted
▇▇▇▇▇▇▇ Subdebt except if and to the extent permitted under the ▇▇▇▇▇▇▇
Subordination Agreement.
The foregoing limited consent shall not constitute a waiver of any of the other
terms or provisions of the Loan Agreement or any other Loan Documents, nor
constitute a consent to any other transaction, whether or not similar to the
foregoing.
6. FEES. Pursuant to Section 3 of the Schedule to Loan Agreement
and because the Asset Based Terms became effective under Section 1(c) above,
Borrower shall pay Bank the additional facility fee of $25,000 concurrently with
the execution and delivery of this Amendment, which fee shall be non-refundable
and in addition to all interest and other fees payable to Bank under the Loan
Documents. Furthermore, in consideration for Bank entering into this Amendment,
Borrower shall pay Bank a fee of $5,000 concurrently with the execution and
delivery of this Amendment, which fee shall be non-refundable and in addition to
all interest and other fees payable to Bank under the Loan Documents. Bank is
authorized to charge said fees to Borrower's loan account.
7. REPRESENTATIONS TRUE; PRIMARY ACCOUNTS. Borrower represents
and warrants to Bank that all representations and warranties set forth in the
Loan Agreement, as amended hereby, are true and correct. Borrower represents and
warrants and covenants and agrees that, from and after the date hereof, Borrower
is and shall be in compliance in all material respects with Section 6.6
[entitled "Primary Accounts"] of the Loan Agreement.
8. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any
prior written amendments to the Loan Agreement signed by Bank and Borrower, and
the other Loan Documents 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 expressly
amended herein (or as amended and restated in the Loan Documents as expressly
contemplated herein), all of the terms and provisions of the Loan Agreement and
all other Loan Documents shall continue in full force and effect and the same
are hereby ratified and confirmed.
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same document.
Delivery of an executed counterpart of this Amendment by telefacsimile shall be
equally as effective as delivery of an original executed counterpart of this
Amendment. The foregoing shall apply to each other Loan Document mutatis
mutandis.
Borrower: Bank:
MOBILITY ELECTRONICS, INC. SILICON VALLEY BANK
By_______________________________ By__________________________________
President or Vice President Title_______________________________
Borrower: Borrower:
PORTSMITH, INC. MAGMA, INC.
By_______________________________ By_______________________________
President or Vice President President or Vice President
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SILICON VALLEY BANK AMENDMENT TO LOAN DOCUMENTS
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 guaranty, security
agreement, or any other Loan Document of the undersigned, all of which are
hereby ratified and affirmed.
Borrower: Borrower:
Cutting Edge Software, Inc. iGo Direct Corporation, a Delaware
corporation formerly known as IGOC
Acquisition, Inc. and
successor-by-merger to iGo Corporation
By_______________________________
President or Vice President
By_______________________________
President or Vice President
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