Exhibit 10.73
LOAN DOCUMENT MODIFICATION AGREEMENT (No. 2)
LOAN DOCUMENT MODIFICATION AGREEMENT (NO. 2) (the "Agreement"), dated
as of March 28, 2003, by and among LIONBRIDGE TECHNOLOGIES HOLDINGS B.V. and
LIONBRIDGE TECHNOLOGIES B.V., each a limited liability company incorporated
under the laws of the Netherlands, Lionbridge Technologies Ireland, an unlimited
company incorporated under the laws of Ireland (collectively, the "Borrowers"),
and SILICON VALLEY BANK ("Silicon"), a California chartered bank with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and with a loan production office located at One Newton Executive Park, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, doing business under
the name "Silicon Valley East".
1. Reference to Existing Loan Documents.
Reference is made to that certain Loan Agreement, dated as of June 28,
2001, between Silicon and the Borrowers, as amended by Loan Document
Modification Agreement (No. 1), dated as of April 29, 2002 (as so amended, with
the attached schedules and exhibits, the "Loan Agreement"), and the Loan
Documents referred to therein, including without limitation, that certain
Promissory Note of the Borrowers dated as of June 28, 2001, in the principal
amount of U.S. $6,000,000, as amended by that certain Allonge dated April 29,
2002 (as so amended, the "Note"). Unless otherwise defined herein, capitalized
terms used in this Agreement shall have the same respective meanings as set
forth in the Loan Agreement.
2. Effective Date.
This Agreement shall become effective as of March 28, 2003 (the
"Effective Date"), provided that Silicon shall have received the following on or
before such date and provided further, that in no event shall this Agreement
become effective until signed by an officer of Silicon in California:
a. two copies of this Agreement, duly executed by the Borrowers, with the
attached Consent of Lionbridge Technologies, Inc. ("LTI"), duly
executed thereby;
b. an Allonge to the Note, in the form of Exhibit 1 attached hereto, duly
executed by each of the Borrowers;
c. a Guarantee Modification Agreement (No. 2) in the form of Exhibit 2
attached hereto, duly executed by LTI, with the attached Consent of
the Borrowers, duly executed thereby; and
d. a certificate of the Secretary or other appropriate officer of each
Borrower, certifying (i) that the resolutions of its Board of
Directors attached to such certificate, authorizing execution and
delivery of this Agreement and the Allonge, have been duly authorized,
(ii) that the charter and other organizational documents of such
Borrower delivered to Silicon on June 28, 2001 remain in effect and
have not been amended or modified in any respect, and (iii) as to the
identity of officer(s) authorized to execute this Agreement and the
Allonge and to
take all other actions contemplated hereby and thereby, and providing
signature specimens of such officer(s).
3. Description of Changes in Terms.
As of the Effective Date, the Loan Agreement is modified in the
following respects:
a. Section 1.4. Section 1.4 of the Loan Agreement is hereby amended by
adding the following sentence at the end of said section: "The full
amount of the Loan Fee shall be fully earned by Silicon on April 2,
2003, regardless of when payable; provided, however, in the event the
obligation to extend credit under this Agreement is syndicated or
shared among other financial institutions prior to the Maturity Date,
such Loan Fee shall, for purposes of the allocation thereof among
Silicon and such other financial institutions, be deemed to accrue
monthly, over a two year period commencing April 2, 2003, and any paid
or unpaid portion of the Loan Fee not deemed accrued on or before the
date of syndication or sharing, shall be distributed among Silicon and
such other financial institutions on a pro rata basis in accordance
with their respective commitments to extend credit hereunder."
b. Section 1.5. Section 1.5 of the Loan Agreement is hereby amended by
adding the parenthetical "(plus the Foreign Exchange Reserve)"
immediately after the first appearance of the words "Letters of
Credit" in the second sentence therein.
c. Section 1.6. Section 1.6 of the Loan Agreement is hereby amended by
adding the parenthetical "(plus the aggregate face amount of all
outstanding Letters of Credit)" immediately after the first appearance
of the words "Exchange Contracts" in the second sentence therein.
d. Section 5.5. Clause (viii) of Section 5.5(c) of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"incur any debts, other than the subordinated Inside Debt listed on
Exhibit A to the Schedule hereto or subordinated debt incurred (on a
dollar for dollar basis, with the written consent of the Bank) in
substitution thereof, or debts to a subsidiary in the ordinary course
of business, but only to the extent such debt would not have a
material, adverse effect on Borrower or any guarantor (including the
Parent Guarantor) or on the prospect of repayment of the
Obligations;".
e. Section 6.2. Section 6.2 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"6.2 Early Termination. So long as no Loans, Letters of Credit or
Exchange Contracts are then outstanding, the credit facility
established under this Agreement may be terminated prior to the
Maturity Date by Borrower providing Silicon written notice thereof not
less than three Business Days prior to the date of the proposed
termination. Such termination shall subject Borrower to, and in the
2
event Silicon shall exercise its remedy of acceleration pursuant to
Section 7.1(b) Borrower shall be subjected to, in addition to any
other fees and amounts payable hereunder, a termination fee (the
"Cancellation Fee") in the amount set forth on the Schedule to this
Loan Agreement. In the event the Cancellation Fee or any other fees or
amounts payable hereunder are not paid in full on the termination date
or acceleration date, as the case may be, such amounts shall bear
interest, until paid in full, at the rate set forth in the Schedule to
this Agreement.".
f. Section 7.1. Section 7.1 of the Loan Agreement is amended as follows:
(i) Section 7.1(m) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows: in its entirety to read
as follows:
"Borrower or Guarantor makes any payment on account of any
indebtedness or obligation which has been subordinated to the
Obligations other than (A) as permitted in the applicable
subordination agreement and hereunder or (B) during any fiscal quarter
commencing on or after April 1, 2003, regularly scheduled payments
(excluding any mandatory or voluntary prepayment, by acceleration or
otherwise) required pursuant to terms of the subordinated debt
documents, on the dates specified therein, but only to the extent the
Aggregated EBITDA for such fiscal quarter then exceeds the sum of the
EBITDA Threshold applicable thereto plus the aggregate amount of all
payments of subordinated debt made on or after April 1, 2003; or if
any Person that has subordinated such indebtedness or obligations
terminates or in any way limits its subordination agreement;"; and
(ii) Section 7.1(q) of the Loan Agreement is amended and restated in
its entirety to read as follows:
"there shall be (i) a Default or Event of Default (as defined in the
Domestic Loan Documents) under the Domestic Loan Documents and/or (ii)
a material breach of any representation or warranty, or any breach of
any covenant (including, without limitation, any financial covenant)
or obligation (including, without limitation, any payment obligation)
of the Guarantor under the Parent Guarantee;".
g. Section 8. Section 8 of the Loan Agreement is hereby amended as
follows:
(i) The following additional definitions are inserted therein in
appropriate alphabetical order:
"'Aggregated EBITDA' means, for any fiscal quarter, the sum
(without duplication) of the EBITDAs (as defined in the Parent
Guarantee) for each completed fiscal quarter ending after March
31, 2003."; and
"'EBITDA Threshold' means, for each fiscal quarter specified
below, the respective amount specified below for such fiscal
quarter:
3
Fiscal Quarter Ended EBITDA Threshold
-------------------- ----------------
April 1, 2003 - June 30, 2003 $ 1,300,000.00
July 1, 2003 - September 30, 2003 $ 3,250,000.00
October 1, 2003 - December 31, 2003 $ 5,250,000.00
January 1, 2004 - March 31, 2004 $ 7,500,000.00
April 1, 2004 - June 30, 2004 $10,000,000.00
July 1, 2004 - September 30, 2004 $12,750,000.00
October 1, 2004 - December 31, 2004 $15,750,000.00"
(ii) The definition of "Eligible Receivables" is amended and restated
in its entirety to read as follows:
" `Eligible Receivables' means Receivables arising in the
ordinary course of Borrower's business from the sale of goods or
rendition of services, which have been invoiced to the relevant
Account Debtor, which Silicon, in its commercially reasonable
judgment, shall deem eligible for borrowing, based on such
commercially reasonable considerations as Silicon may from time
to time deem appropriate. Without limiting the fact that the
determination of which Receivables are eligible for borrowing is
a matter of Silicon's discretion, the following (the "Eligibility
Requirements") are the minimum requirements by which a Receivable
may be deemed an Eligible Receivable: (i) the Receivable must not
be outstanding for more than 90 days from its invoice date, (ii)
the Receivable must not be subject to any contingencies
(including Receivables arising from sales on consignment,
guaranteed sale or other terms pursuant to which payment by the
Account Debtor may be conditional), (iii) the Receivable must not
be owing from an Account Debtor with whom Borrower has any
material dispute regarding collection (whether or not relating to
the particular Receivable), (iv) the Receivable must not be owing
from an Affiliate of Borrower, (v) the Receivable must not be
owing from an Account Debtor which is subject to any insolvency
or bankruptcy proceeding, or which, fails or goes out of a
material portion of its business, or be a Receivable that Silicon
knows or has reason to know presents a material risk of
non-collection, (vi) with respect to Lionbridge Technologies
Holdings B.V. and Lionbridge Technologies B.V., the Receivable
must be invoiced from The Netherlands, and with respect to
Lionbridge Technologies Ireland, the Receivable must be invoiced
from Ireland and (vii) the Receivable must not be owing from an
Account Debtor to whom Borrower is or may be liable for goods
purchased from such Account Debtor or otherwise. Notwithstanding
satisfaction of all Eligibility Requirements, Receivables owing
from any individual Account Debtor shall be ineligible for
borrowing (as Eligible Receivables) to the extent they exceed 25%
of the total of all Receivables then outstanding; provided,
however, Receivables owing from Microsoft Corporation and
Hewlett-Packard, to the extent otherwise satisfying all
Eligibility Requirements, shall be eligible for borrowing (as
Eligible Receivables) to the extent they do not exceed 35% of the
total of all Receivables then outstanding. In addition, if more
than 50% of Receivables owing from any individual Account Debtor
are
4
outstanding more than 90 days after the applicable invoice
date(s) (without regard to unapplied credits), or otherwise do
not satisfy all Eligibility Requirements, then all Receivables
owing from such Account Debtor shall be ineligible for borrowing
(as Eligible Receivables). Silicon may, from time to time, in its
commercially reasonable judgment, revise any eligibility
requirement, upon written notice to Borrower."; and
(iii) The definition of "Domestic Loan Documents" is amended by
inserting the following phrase immediately before the period at
the conclusion thereof: ", in each case, as the same may be
amended, restated, supplemented or otherwise modified from time
to time";
h. Section 9.1. Section 9.1 of the Loan Agreement is hereby amended by
deleting the word "three" in the first sentence therein, and inserting
in its place the word "two".
i. Schedule to Loan Agreement. The Schedule to the Loan Agreement is
hereby amended and restated in its entirety to read as set forth on
Exhibit 3 attached hereto.
j. The Loan Agreement and the other Loan Documents are hereby amended
wherever necessary or appropriate to reflect the foregoing changes.
4. Representations and Warranties. Each Borrower represents and warrants to
Silicon that as of the Effective Date, after giving effect to the waiver
contained in Section 3 of the Guarantee Modification Agreement No. 2
attached hereto as Exhibit 2, (i) except as set forth in Schedule A
attached hereto, the representation and warranties of the Borrowers set
forth in the Loan Documents (as amended by this Agreement) are true and
correct, (ii) no Borrower has any defenses against its obligations to pay
any amounts due under the Loan Agreement and the other Loan Documents and
(iii) no Default or Event of Default has occurred and is continuing.
5. Continuing Validity. Upon the effectiveness hereof, each reference in each
Loan Document to "the Loan Agreement", "thereunder", "thereof", "therein",
or words of like import referring to the Loan Agreement, shall mean and be
a reference to the Loan Agreement, as amended hereby. Except as
specifically set forth above, the Loan Agreement shall remain in full force
and effect and is hereby ratified and confirmed. Each of the other Loan
Documents are in full force and effect and are hereby ratified and
confirmed. The amendments set forth above (i) do not constitute a waiver or
modification of any term, condition or covenant of the Loan Agreement or
any other Loan Document, other than as expressly set forth herein, and (ii)
shall not prejudice any rights which Silicon may now or hereafter have
under or in connection with the Loan Agreement, as amended hereby, or the
other Loan Documents and shall not obligate Silicon to assent to any
further modifications.
6. Miscellaneous.
5
a. This Agreement may be signed in one or more counterparts each of which
taken together shall constitute one and the same document.
b. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
c. EACH 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 AGREEMENT; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON SILICON CANNOT AVAIL ITSELF OF THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, THEN VENUE SHALL LIE IN
SANTA ▇▇▇▇▇ COUNTY, CALIFORNIA.
d. The Borrowers agree, on a joint and several basis, to promptly pay on
demand all reasonable costs and expenses of Silicon in connection with
the preparation, reproduction, execution and delivery of this
Agreement and the other instruments and documents to be delivered
hereunder.
6
IN WITNESS WHEREOF, Silicon and the Borrowers have caused this Loan
Document Modification Agreement (No. 2) to be signed under seal by their
respective duly authorized officers as of the date first set forth above.
SILICON VALLEY EAST, A DIVISION
OF SILICON VALLEY BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Relationship Manager
SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Loan Documentation Specialist
(signed in Santa Clara, CA)
LIONBRIDGE TECHNOLOGIES HOLDINGS B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
LIONBRIDGE TECHNOLOGIES B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
LIONBRIDGE TECHNOLOGIES IRELAND
(Present when the Common Seal of Lionbridge
Technologies Ireland was affixed hereto)
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
7
