EXHIBIT 10.28
SIXTH LOAN MODIFICATION AGREEMENT
This Sixth Loan Modification Agreement (this "Loan Modification
Agreement") is entered into as of November 24, 2004, 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 ART TECHNOLOGY GROUP, INC., a Delaware corporation with its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxx, 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
June 13, 2002, evidenced by, among other documents, a certain Amended
and Restated Loan and Security Agreement dated as of June 13, 2002,
between Borrower and Bank, as amended by a certain First Loan
Modification Agreement dated as of September 27, 2002, as further
amended by a certain Amendment dated as of October __, 2002, as further
amended by a certain Second Loan Modification Agreement dated as of
December 24, 2002, as further amended by a certain Third Loan
Modification Agreement dated as of October 20, 2003, as further amended
by a certain Fourth Loan Modification Agreement dated November 26,
2003, as further amended by a certain Letter Agreement dated June 16,
2004, as further amended by a certain Fifth Loan Modification Agreement
dated June 30, 2004 (as amended, the "Loan Agreement"). Capitalized
terms used but not otherwise defined herein shall have the same meaning
as in the Loan Agreement.
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. The Loan Agreement shall be amended by deleting the
following definition appearing in Section 13 thereof,
in its entirety:
""REVOLVING MATURITY DATE" is November 25,
2004."
and inserting in lieu thereof the following:
""REVOLVING MATURITY DATE" is December 25,
2004."
4. FEES. Borrower shall pay to Bank a modification fee equal to Seven
Thousand Eight-Three Dollars and 00/100 ($7,083.00), 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 reasonable legal
fees and expenses incurred in connection with this amendment to the
Existing Loan Documents.
5. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower
hereby ratifies, confirms and reaffirms, all and singular, the terms
and conditions of a certain Intellectual Property Security Agreement
dated as of June 13, 2002 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
(with the exception of the Intellectual Property Collateral set forth
on Schedule 5 attached hereto) as of June 13, 2002 or any subsequent
amendment thereto and shall remain in full force and effect.
6. RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies,
confirms and reaffirms, all and singular, the terms and disclosures
contained in a certain Perfection Certificate dated as of June 13, 2002
between Borrower and Bank, and acknowledges, confirms and agrees the
disclosures and information Borrower provided to Bank in said
Perfection Certificate has not changed, as of the date hereof.
7. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
8. 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.
9. 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.
10. 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.
11. 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:
ART TECHNOLOGY GROUP, INC. SILICON VALLEY BANK, doing business
as SILICON VALLEY EAST
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
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Title: CFO Title: Vice President
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SILICON VALLEY BANK
By:
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Name:
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Title:
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(signed in Santa Xxxxx County, California)
