EXHIBIT 10.1
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THIRD LOAN MODIFICATION AGREEMENT
This Third Loan Modification Agreement (this "Loan Modification Agreement")
is entered into as of April 23, 2001, by and between SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, XX 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
SEACHANGE INTERNATIONAL, INC., a Delaware corporation with its chief executive
office located at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx("Xxxxxxxx").
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other
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indebtedness and obligations which may be owing by Borrower to Bank, Borrower is
indebted to Bank pursuant to, among other documents, (i) a certain Loan and
Security Agreement dated as of November 10, 1998, between Borrower and Bank, as
amended by First Modification Agreement dated as of March 23, 2000 and a Second
Modification Agreement dated as of July 25, 2000 (as amended, the "Loan
Agreement"). The Loan Agreement established: (i) a working capital line of
credit in favor of Borrower in the maximum principal amount of Seven Million
Five Hundred Thousand and 00/100 Dollars ($7,500,000.00) (the "Committed
Revolving Line"), and (ii) an equipment line of credit in favor of Borrower
(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 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
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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.
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A. Modifications to Loan Agreement.
1. The Loan Agreement shall be amended by deleting the following
definition appearing in Section 1.1 thereof:
"Revolving Maturity Date" means March 31, 2001."
and inserting in lieu thereof the following:
"Revolving Maturity Date" means June 30, 2001."
B. Waivers.
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1. Bank hereby waives Borrower's existing defaults under the Loan
Agreement by virtue of Borrower's failure to comply with the
"PROFITABILITY" requirements set forth in Section 6.11 thereof as
of the quarter and year ending on January 31, 2001. Bank's waiver
of Borrower's compliance of said affirmative covenant shall apply
only to the foregoing specific periods.
4. FEES.
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A. Modification Fee.
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1. Borrower shall pay to Bank a modification fee equal to Seven
Thousand Five Hundred 00/100 Dollars ($7,500.00), which fee shall
be due on the date hereof and shall be deemed fully earned as of
the date hereof. The Borrower shall also reimburse Bank for all
legal fees and expenses incurred in connection with this
amendment to the Existing Loan Documents.
B. Facility Fee.
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1. Borrower shall pay to Bank a facility fee equal to Four Thousand
Six Hundred and Eighty and 00/100 Dollars ($4,680.00), which fee
shall be due on the date hereof and shall be deemed fully earned
as of the date hereof.
5. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower hereby
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ratifies, confirms and reaffirms, all and singular, the terms and conditions of
a certain Intellectual Property Security Agreement dated as of November 10, 1998
between Borrower and Bank, and acknowledges, confirms and agrees that said
Intellectual Property Security Agreement contains an accurate and complete
listing of all Intellectual Property Collateral as defined in said Intellectual
Property Security Agreement, shall remain in full force and effect.
6. RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies, confirms
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and reaffirms, all and singular, the terms and disclosures contained in a
certain Perfection Certificate dated as of July 24, 2000 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. Further, 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 state of formation, or (iii) change
its organizational structure, (iv) change its legal name, or (v) change any
organizational number (if any) assigned by its state of formation. In addition,
the Borrower hereby certifies that no Collateral is in the possession or 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 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.
7. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file financing
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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. CONCERNING REVISED ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE. The Borrower
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affirms and reaffirms that notwithstanding the terms of the Security Documents
to the contrary, (i) that the definition of "Code", "UCC" or "Uniform Commercial
Code" as set forth in the Security Documents shall be deemed to mean and refer
to "the Uniform Commercial Code as adopted by The Commonwealth of Massachusetts
(presently, Mass. Gen. Laws. Ch. 106), may be amended and in effect from time to
time and (ii) the Collateral is all assets of the Borrower. In connection
therewith, the Collateral shall include, without limitation, the following
categories of assets as defined in the Code: goods (including inventory,
equipment and any accessions thereto), instruments (including promissory notes),
documents, accounts (including health-care-insurance receivables, and license
fees), chattel paper (whether tangible or electronic), deposit accounts, letter-
of-credit rights (whether or not the letter of credit is evidenced by a
writing), commercial tort claims, securities and all other investment property,
general intangibles (including payment intangibles and software), supporting
obligations and any and all proceeds of any thereof, wherever located, whether
now owned or hereafter acquired.
9. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
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wherever necessary to reflect the changes described above.
10. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
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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.
11. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
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defenses against the obligations to pay any amounts under the Obligations.
12. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
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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.
13. RIGHT OF SET-OFF. In consideration of Bank's agreement to enter into this
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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.
14. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
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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 Xxxxx County, California.
15. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
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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:
SEACHANGE INTERNATIONAL, INC. SILICON VALLEY BANK, doing business as
SILICON VALLEY EAST
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
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Title: Chief Financial Officer Title: SVP
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SILICON VALLEY BANK
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: Manager
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(signed in Santa Xxxxx County,
California)
