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Exhibit 10.19
SECOND LOAN MODIFICATION AGREEMENT
This Second Loan Modification Agreement ("this Agreement") is made as of
December 31, 1997 between Xionics Document Technologies, Inc., a Delaware
corporation (the "Borrower") and Fleet National Bank (successor by merger to
Fleet Bank of Massachusetts, N.A.) (the "Bank"). For good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, the
Borrower and the Bank act and agree as follows:
1. Reference is made to: (i) that certain letter agreement dated
September 27, 1995 among the Borrower, Xionics, Inc. ("Xionics") and Fleet Bank
of Massachusetts, N.A., as amended by letter dated May 9, 1996 and by Loan
Modification Agreement dated as of August 21, 1996 (as so amended, the "Letter
Agreement"), the Bank having succeeded to the rights of Fleet Bank of
Massachusetts, N.A. thereunder and Xionics having been merged with and into the
Borrower; (ii) that certain $4,000,000 face principal amount promissory note
dated August 21, 1996 (the "1996 Revolving Note") made by the Borrower and
payable to the order of the Bank; (iii) that certain Inventory, Accounts
Receivable and Intangibles Security Agreement dated September 27, 1995, as
amended (as so amended, the "IAR Security Agreement") given by the Borrower to
Fleet Bank of Massachusetts, N.A., the Bank having succeeded to the rights of
Fleet Bank of Massachusetts, N.A. thereunder; (iv) that certain Supplementary
Security Agreement - Security Interest in Goods and Chattels dated September 27,
1995, as amended (as so amended, the "Supplementary Security Agreement") given
by the Borrower to Fleet Bank of Massachusetts, N.A., the Bank having succeeded
to the rights of Fleet Bank of Massachusetts, N.A. thereunder; (v) that certain
Notice of Security Interest in Trademarks dated September 27, 1995, as amended
(as so amended, the "Trademark Notice") given by the Borrower to Fleet Bank of
Massachusetts, N.A., the Bank having succeeded to the fights of Fleet Bank of
Massachusetts, N.A. thereunder; (vi) that certain Collateral Assignment of
License dated September 27, 1995, as amended (as so amended, the "Xionics
License Assignment") relating to the "Xionics" name and xxxx given by the
Borrower to Fleet Bank of Massachusetts, N.A., the Bank having succeeded to the
rights of Fleet Bank of Massachusetts, N.A. thereunder; (vii) that certain
Agreement and Consent to Collateral Assignment of License dated September 27,
1995, as amended (as so amended, the "Xionics Consent") relating to the
"Xionics" name and xxxx given by Xionics Limited, an English corporation, to
Fleet Bank of Massachusetts, N.A., the Bank having succeeded to the rights of
Fleet Bank of Massachusetts, N.A. thereunder; (viii) that certain Notice of
Collateral Assignment of License dated September 27, 1995, as amended (as so
amended, the "Xionics License Notice") relating to the "Xionics" name and xxxx
given by the Borrower to Fleet Bank of Massachusetts, N.A., the Bank having
succeeded to the rights of Fleet Bank of Massachusetts, N.A. thereunder; (ix)
that certain Collateral Assignment of License dated September 27, 1995, as
amended (as so amended, the "Phoenix License Assignment") relating to the
"PhoenixPage" name and xxxx given by the Borrower to Fleet Bank of
Massachusetts, N.A., the Bank having succeeded to the rights of Fleet Bank of
Massachusetts, N.A. thereunder; (x) that certain Agreement and Consent to
Collateral Assignment of License dated September 21, 1995, as amended (as so
amended, the "Phoenix Agreement") between Phoenix Technologies Ltd. ("Phoenix")
and Fleet Bank of Massachusetts, N.A., the Bank having succeeded to the rights
of Fleet Bank of Massachusetts, N.A. thereunder; (xi) that certain Notice of
Collateral
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Assignment of License dated September 27, 1995, as amended (as so amended, the
"Phoenix License Notice") relating to the "PhoenixPage" name and xxxx given by
the Borrower to Fleet Bank of Massachusetts, N.A., the Bank having succeeded to
the rights of Fleet Bank of Massachusetts, N.A. thereunder; (xii) that certain
Notice of Security Interest in Patents dated September 27, 1995, as amended (as
so amended, the "Patent Notice") given by the Borrower to Fleet Bank of
Massachusetts, N.A., the Bank having succeeded to the rights of Fleet Bank of
Massachusetts, N.A. thereunder; (xiii) that certain $4,000,000 face principal
amount promissory note of even date herewith (the "1997 Revolving Note") made by
the Borrower and payable to the order of the Bank; and (xiv) that certain
$2,000,000 face principal amount term note of even date herewith (the "Term
Note") made by the Borrower and payable to the order of the Bank. The Letter
Agreement, the IAR Security Agreement, the Supplementary Security Agreement, the
Trademark Notice, the Xionics License Assignment, the Xionics Consent, the
Xionics License Notice, the Phoenix License Assignment, the Phoenix Agreement,
the Phoenix License Notice, the Patent Notice, the Term Note and the 1997
Revolving Note are hereinafter collectively referred to as the "Financing
Documents". The aforesaid Loan Modification Agreement dated as of August 21,
1996 is hereinafter referred to as the "First Modification".
2. The Letter Agreement is hereby amended, effective as of the date
hereof:
a. By deleting in its entirety clause (i) of Section 1.1 of the Letter
Agreement and by substituting in its stead the following:
"(i) that certain $4,000,000 face principal amount promissory note
(the 'Revolving Note') dated December 31, 1997 made by the Borrower
and payable to the order of the Bank,"
As a result, all references in the Letter Agreement to a "Revolving Note" will
be deemed to refer to the 1997 Revolving Note.
b. By deleting in its entirety clause (ii) of Section 1.1 of the Letter
Agreement and by substituting in its stead the following:
"(ii) that certain $2,000,000 face principal amount promissory note
(the 'Term Note') made by the Borrower and payable to the order of the
Bank,"
c. By deleting in their entireties Sections 1.4 and 1.5 of the Letter
Agreement and by substituting in their stead the following:
"1.4. TERM LOANS; TERM NOTE. In addition to the foregoing, the Bank
may make one or more loans (the 'Term Loans') to the Borrower in an
aggregate principal amount up to $2,000,000. A Term Loan shall be
made, no more than once per calendar quarter (except that more than
one Term Loan may be made in any calendar quarter provided that any
additional Term Loan in any one calendar quarter is in an amount of at
least $100,000), in order
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to finance costs of Qualifying Equipment acquired by the Borrower
within the 90 days preceding the request for such Term Loan, each such
Term Loan to be in such amount as may be requested by the Borrower;
provided that (i) no Term Loan will be made after the earlier of (A)
December 1, 1998 or (B) the earlier termination of the
within-described term loan facility pursuant to ss.5.2 or ss.6.7; (ii)
the aggregate original principal amounts of all Term Loans will not
exceed $2,000,000; and (iii) no Term Loan will be in an amount more
than 80% of the invoiced actual costs of the items of tangible
equipment constituting the items of Qualifying Equipment with respect
to which such Term Loan is made (excluding taxes, shipping, software,
installation charges, training fees and other 'soft costs'). Prior to
the making of each Term Loan, and as a precondition thereto, the
Borrower will provide the Bank with: (i) invoices supporting the costs
of the relevant Qualifying Equipment; (ii) such evidence as the Bank
may reasonably require showing that the Qualifying Equipment has been
delivered to and installed at the Borrower's Burlington, MA premises,
has become fully operational, has been paid for by the Borrower and is
owned by the Borrower free of all liens and interests of any other
Person (other than the security interest of the Bank pursuant to the
Security Agreement); (iii) Uniform Commercial Code financing
statements, if needed, reflecting the relevant Qualifying Equipment
with respect to which such Term Loan is being made; and (iv) evidence
satisfactory to the Bank that the Qualifying Equipment is fully
insured against casualty loss, with insurance naming the Bank as
secured party and first loss payee. The Term Loans will be evidenced
by the Term Note. Interest on the Term Loans shall be payable at the
times and at the rate provided for in the Term Note. Overdue principal
of any Term Loan and, to the extent permitted by law, overdue interest
shall bear interest at a fluctuating rate per annum which at all times
shall be equal to the sum of (i) four (4%) percent per annum plus (ii)
the per annum rate otherwise payable under the Term Note (but in no
event in excess of the maximum rate from time to time permitted by
then applicable law), compounded monthly and payable on demand. The
Borrower hereby irrevocably authorizes the Bank to make or cause to be
made, on a schedule attached to the Term Note or on the books of the
Bank, at or following the time of making each Term Loan and of
receiving any payment of principal, an appropriate notation reflecting
such transaction and the then aggregate unpaid principal balance of
the Term Loans. The amount so noted shall constitute presumptive
evidence as to the amount owed by the Borrower with respect to
principal of the Term Loans. Failure of the Bank to make any such
notation shall
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not, however, affect any obligation of the Borrower or any right of
the Bank hereunder or under the Term Note.
1.5. PRINCIPAL REPAYMENT OF TERM LOANS. The Borrower shall repay
principal of the Term Loans in 35 equal consecutive monthly
installments (each in an amount equal to 1/36th of the aggregate
principal amount of the Term Loans outstanding at the close of
business on December 1, 1998), such installments to commence January
1, 1999 and to continue thereafter on the first day of each month
through and including November 1, 2001, plus a 36th and final payment
due and payable on December 1, 2001 in an amount equal to all
principal of the Term Loans then remaining outstanding and all
interest accrued but unpaid thereon. The Borrower may prepay, at any
time or from time to time, without premium or penalty, the whole or
any portion of any Term Loan; provided that each such principal
prepayment shall be accompanied by payment of all interest on the sum
so prepaid accrued but unpaid to the date of payment. Any partial
prepayment of principal of the Term Loans will be applied to
installments of principal of the Term Loans thereafter coming due in
inverse order of normal maturity. Amounts repaid or prepaid with
respect to the Term Loans are not available for reborrowing."
d. By inserting into the third sentence of the third paragraph of Section
1.6 of the Letter Agreement (as amended by the First Modification), immediately
after the words "in immediately available funds" the following:
"in lawful currency of the United States"
e. By deleting in its entirety Subsection 2.1(b) of the Letter Agreement.
f. By deleting their entireties Sections 3.7, 3.8, 3.9 and 3.10 of the
Letter Agreement and by substituting in their stead the following:
"3.7. DEBT TO WORTH. The Borrower will maintain as at the end of each
fiscal quarter of the Borrower (commencing with December 31, 1997) on
a consolidated basis a Leverage Ratio of not more than 0.75 to 1. As
used herein, 'Leverage Ratio' means, as at any date when same is to be
determined, the ratio of (x) the outstanding consolidated Adjusted
Senior Debt of the Borrower and its Subsidiaries to (y) the Borrower's
consolidated Capital Base at such date.
3.8. CAPITAL BASE. The Borrower will maintain as at the end of each
fiscal quarter of the Borrower (commencing with December 31,
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1997) a consolidated Capital Base which shall not be less than the
then-effective Capital Base Requirement. As used in this ss.3.8, the
'Capital Base Requirement' will be deemed to have been $27,647,000 as
at September 30, 1997; and as at the last day of each fiscal quarter
thereafter (beginning with December 31, 1997) the Capital Base
Requirement will be deemed to become an amount equal to the sum off.
(i) that Capital Base Requirement which had been in effect on the last
day of the immediately preceding fiscal quarter, plus (ii) 80% of the
net proceeds of any equity securities sold by the Borrower during the
fiscal quarter then ended and 80% of the net proceeds of any
Subordinated Debt issued by the Borrower and/or any of its
Subsidiaries during said fiscal quarter then ended (nothing contained
herein being deemed to approve the issuance of any such Subordinated
Debt), plus (iii) 80% of the consolidated Net Income of the Borrower
and Subsidiaries during said fiscal quarter then ended (but without
giving effect to any Net Income which is less than zero for any fiscal
quarter).
3.9. QUICK RATIO. The Borrower will maintain as at the end of each
fiscal quarter (commencing with December 31, 1997) a Quick Ratio of
not less than 2.0 to 1. As used in this ss.3.9, 'Quick Ratio' means,
as at any date when same is to be determined the ratio of (x) the
Borrower's Net Quick Assets to (y) Current Liabilities of the Borrower
and/or its Subsidiaries then outstanding.
3.10. PROFITABILITY. The Borrower will achieve consolidated quarterly
Adjusted Net Income of at least the following: at least $150,000 for
its fiscal quarter ending December 31, 1997; at least $250,000 for its
fiscal quarter ending March 31, 1998; at least $250,000 for its fiscal
quarter ending June 30, 1998; at least $350,000 for its fiscal quarter
ending September 30, 1998; and at least $500,000 for its fiscal
quarter ending December 31, 1998 and for each fiscal quarter
thereafter. Without limitation of the foregoing, the Borrower will
achieve consolidated annual Adjusted Net Income of at least $1,750,000
for its fiscal year ending June 30, 1998 and will achieve consolidated
annual Adjusted Net Income of at least $2,000,000 for its fiscal year
ending June 30, 1999 and for each fiscal year thereafter. As used
herein, 'Adjusted Net Income' for any fiscal period means the sum of
(i) the Borrower's consolidated Net Income (or Net Loss, if relevant,
expressed as a negative number) for such period plus (ii) any charges
against income representing the amounts allocated for costs of
research and development acquired by the Borrower pursuant to any
acquisition to the extent that such charges are actually deducted on
the consolidated books of the Borrower for the purposes of determining
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the Borrower's consolidated Net Income (or consolidated Net Loss, as
the case may be) for such fiscal period."
g. By deleting from clause (a) of Section 5.1 of the Letter Agreement the
words "any Term Note" and by substituting in their stead the following:
"the Term Note"
h. By deleting from clause (a) of Section 5.2 of the Letter Agreement the
words "each Term Note" and by substituting in their stead the following:
"the Term Note"
i. By deleting from clause (c) of Section 5.2 of the Letter Agreement the
words "each Term Note" and by substituting in their stead the following:
"the Term Note"
j. By deleting from Section 6.1 of the Letter Agreement the words "any
Term Note", in each place where such words appear, and by substituting in their
stead, in each such place, the following:
"the Term Note"
k. By adding to Section 6.3 of the Letter Agreement, at the end thereof,
the following:
"In addition, and without limitation of the foregoing, in respect of
the within-described facility for Term Loans, the Borrower will pay to
the Bank a non-refundable facility fee of $10,000. Said fee shall be
payable in four installments of $2,500 each, the first such
installment being payable on December 31, 1997 and the subsequent
installments being payable on each of March 31, 1998, June 30, 1998
and September 30, 1998. In addition, if the within-described Term Loan
facility is terminated prior to September 30, 1998 by the Borrower for
any reason or by the Bank as a result of the Borrower's default, there
will forthwith become due and payable and the Borrower will, forthwith
upon such termination, pay to the Bank a sum equal to all of the
installments of the aforesaid $10,000 facility fee which would
otherwise have become due on or after the date of such termination."
1. By inserting into the fifth sentence of Section 6.7 of the Letter
Agreement, immediately after the words "second sentence of ss.6.3", the
following:
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"and the sum described in the last sentence of ss.6.3"
m. By deleting in its entirety the definition of"Borrowing Base"
appearing in Section 7.1 of the Letter Agreement and by substituting in its
stead the following:
"'Borrowing Base' - At any time, the sum of: (i) 80% of the aggregate
principal amount of the Qualified Receivables of the Borrower then
outstanding, PLUS (ii) 80% of the aggregate principal amount of the
Other Approved Foreign Receivables of the Borrower then outstanding."
n. By deleting from the definition of"Current Liabilities" appearing in
Section 7.1 of the Letter Agreement the following sentence, which had been added
by the First Modification: "Notwithstanding the foregoing, 'Current Liabilities'
will not be deemed to include any liability which constitutes Deferred Revenue."
o. By deleting from the definition of"Expiration Date" appearing in
Section 7.1 of the Letter Agreement the date "December 1, 1997" (said date
having been inserted by the First Modification) and by substituting in its stead
the following:
"December 1, 1998"
As a result, from and after the date hereof, for the purposes of the Letter
Agreement and the other Financing Documents, the "Expiration Date" will be
deemed to be December 1, 1998.
p. By deleting from the definition of "Loan Documents" appearing in
Section 7.1 of the Letter Agreement the words "the Term Notes" and by
substituting in their stead the following:
"the Term Note"
q. By deleting in its entirety the definition of "Net Quick Assets"
appearing in Section 7.1 of the Letter Agreement and by substituting in its
stead the following:
"'Net Quick Assets' - Such current assets of the Borrower as consist
of cash, cash-equivalents, Receivables (less an allowance for bad debt
consistent with the Borrower's prior experience), and (without
duplication of any of the foregoing) contract receivables of the
Borrower. As used herein 'contract receivables' are only those amounts
which have been earned by performance under contracts and only to the
extent that same are properly shown as 'contract receivables' on a
balance sheet of the Borrower prepared consistently with the
Borrower's balance sheet as at June 30, 1997, heretofore delivered to
the Bank."'
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r. By deleting from the definition of "Notes" appearing in Section 7.1 of
the Letter Agreement the words "the Term Notes" and by substituting in their
stead the following:
"the Term Note"
s. By deleting in its entirety the definition of "Other Approved Foreign
Receivables" appearing in Section 7.1 of the Letter Agreement and by
substituting in its stead the following:
"'Other Approved Foreign Receivables' - Receivables owed to the
Borrower by a Qualifying Foreign Customer which satisfy all of the
criteria to be Qualified Receivables except that such Receivables are
owed by a customer not located in the United States. As used herein,
'Qualifying Foreign Customer' means any of the following entities:
Xxxxxx, Inc., RICOH Company, Ltd., Sharp Corporation, Fuji Xerox
Company, Ltd. or Mita Industrial Company, Ltd."
t. By deleting from the definition of "Qualifying Equipment" appearing in
Section 7.1 of the Letter Agreement the date "April 1, 1995" and by substituting
in its stead the following:
"September 1, 1997"
u. By deleting from Subsection 7.2(a) of the Letter Agreement the words
"the Term Notes" and by substituting in their stead the following:
"the Term Note"
3. Wherever in any Financing Document, or in any certificate or opinion
to be delivered in connection therewith, reference is made to a "letter
agreement" or to the "Letter Agreement", from and after the date hereof same
will be deemed to refer to the Letter Agreement, as hereby amended.
4. Simultaneously with the execution and delivery of this Agreement, the
Borrower is executing and delivering to the Bank the 1997 Revolving Note, in
substitution for the 1996 Revolving Note. The 1997 Revolving Note is a
$4,000,000 promissory note of the Borrower, substantially in the form attached
hereto as Exhibit 1. Wherever in any of the Financing Documents or in any
certificate or opinion to be delivered in connection therewith, reference is
made to a "Revolving Note", from and after the date hereof same will be deemed
to refer to the 1997 Revolving Note. Promptly after the Borrower has duly
executed and delivered the 1997 Revolving Note and has given the Bank all
opinions, certificates and other documentation reasonably requested by the Bank
in connection therewith and has paid all interest then accrued under the 1996
Revolving Note, the Bank will xxxx the 1996 Revolving Note "canceled" and will
return same to the Borrower.
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5. By its execution below, Xionics International Limited represents to
the Bank that it has become the assignee of the "Xionics" name and xxxx, subject
to the license to such name and xxxx theretofore given to the Borrower by
Xionics Limited. Xionics Limited International confirms that such license to the
Borrower remains in full force and effect and confirms the Bank's rights under
the Xionics License Assignment. Xionics International Limited acknowledges and
agrees that the Xionics Consent remains in full force and effect for the benefit
of the Bank, and agrees to be bound thereby as effectively as if it has been an
original party thereto.
6. In order to induce the Bank to enter into this Agreement, the Borrower
further represents and warrants as follows:
a. The execution, delivery and performance of this Agreement, the 1997
Revolving Note and the Term Note have been duly authorized by the Borrower by
all necessary corporate and other action, will not require the consent of any
third party (except any such consents which have already been received) and will
not conflict with, violate the provisions of, or cause a default or constitute
an event which, with the passage of time or the giving of notice or both, could
cause a default on the part of the Borrower under its charter documents or
by-laws or under any contract, agreement, law, rule, order, ordinance,
franchise, instrument or other document, or result in the imposition of any lien
or encumbrance (except in favor of the Bank) on any property or assets of the
Borrower.
b. The Borrower has duly executed and delivered each of this Agreement,
the 1997 Revolving Note and the Term Note.
c. Each of this Agreement, the 1997 Revolving Note and the Term Note is
the legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its respective terms.
d. Giving effect to the amendments contained in this Agreement, the
statements, representations and warranties made in the Letter Agreement, in the
IAR Security Agreement and/or in the Supplementary Security Agreement continue
to be correct as of the date hereof; except as amended, updated and/or
supplemented by the attached Supplemental Disclosure Schedule.
e. Giving effect to the amendments contained in this Agreement, the
covenants and agreements of the Borrower contained in the Letter Agreement, in
the IAR Security Agreement and/or in the Supplementary Security Agreement have
been complied with on and as of the date hereof, except as certain transactions
set forth on the attached Supplemental Disclosure Schedule may require a waiver
or consent of the Bank (such waiver or consent being deemed given hereby).
f. Giving effect to the amendments contained in this Agreement, no event
which constitutes or which, with notice or lapse of time, or both, could
constitute, an Event of Default (as defined in the Letter Agreement) has
occurred and is continuing, except as certain
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transactions set forth on the attached Supplemental Schedule may require a
waiver or consent of the Bank (such waiver or consent being deemed given
hereby).
g. No material adverse change has occurred in the financial condition of
the Borrower from that disclosed in the consolidated financial statements of the
Borrower dated September 30, 1997, heretofore furnished to the Bank, except as
otherwise disclosed on the financial projections furnished to the Bank by the
Borrower on December 30, 1997.
7. Except as expressly affected hereby, the Letter Agreement and each of
the other Financing Documents remains in full force and effect as heretofore.
8. Nothing contained herein will be deemed to constitute a waiver or a
release of any provision of any of the Financing Documents. Nothing contained
herein will in any event be deemed to constitute an agreement to give a waiver
or release or to agree to any amendment or modification of any provision of any
of the Financing Documents on any other or future occasion.
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Executed, as an instrument under seal, as of the day and year first above
written.
XIONICS DOCUMENT
TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: CFO
XIONICS INTERNATIONAL LIMITED
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
Accepted and agreed:
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: V.P.
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