Exhibit 10.10(B)
AMENDED AND RESTATED SCHEDULE TO LOAN AND SECURITY AGREEMENT
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Borrower: VISIO CORPORATION
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Date: February 28, 1997
REVOLVING LOAN
CREDIT LIMIT;
SECURITY:
(Section 1.1) An amount not to exceed $1,000,000 at any one time
outstanding. The amount of all letters of credit issued
by Silicon at the request of the Borrower shall reduce,
dollar for dollar, the amount otherwise available to be
borrowed under the formula described in this paragraph.
This Revolving Loan shall be unsecured. Borrower shall
not grant a security interest in, or lien on, any of
its assets in favor of any person other than Silicon.
INTEREST RATE:
(Section 1.2) A rate equal to the "Prime Rate" in effect from time to
time. Interest calculation shall be made on the basis
of a 360-day year and the actual number of days
elapsed. "Prime Rate" means the rate announced from
time to time by Silicon as its "prime rate"; it is a
base rate upon which other rates charged by Silicon are
based, and it is not necessarily the best rate
available at Silicon. The interest rate applicable to
the Obligations shall change on each date there is a
change in the Prime Rate.
LOAN ORIGINATION FEE:
(Section 1.3) $2,000, which is due and payable at closing. (Any
Commitment Fee previously paid by the Borrower in
connection with this loan shall be credited against
this Fee.)
MATURITY DATE:
(Section 5.1) February 28, 1998, at which time all unpaid principal
and accrued by unpaid interest shall be due and
payable.
MATURITIES OF
LETTERS OF CREDIT: Commercial or standby letters of credit issued by
Silicon shall have a maximum maturity of not later than
February 28, 1998, without the prior written consent of
Silicon.
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FOREIGN EXCHANGE
SUBLIMIT: Borrower may utilize up to the Credit Limit for spot and future
foreign exchange contracts (the "Exchange Contracts"). All
Exchange Contracts must provide for delivery of settlement on
or before the Maturity Date. The limit available at any time
shall be reduced by the following amounts (the "Foreign
Exchange Reserve") on each day (the "Determination Date"): (i)
on all outstanding Exchange Contracts on which delivery is to
be effected or settlement allowed more than two business days
from the Determination Date, 20% of the gross amount of the
Exchange Contracts; plus (ii) on all outstanding Exchange
Contracts on which delivery is to be effected or settlement
allowed within two business days after the Determination Date,
100% of the gross amount of the Exchange Contract, the Borrower
may request that Silicon debit the Borrower's bank account with
Silicon for such amount, provided Borrower has immediately
available funds in such amounts in its bank account.
Whenever Borrower desires to enter into an Exchange Contract,
Borrower will notify Silicon by facsimile transmission or by
telephone not later than 11:00 a.m. California time, two
business days before effectiveness of the contract. Silicon
shall be entitled to rely on any such telephone notice given by
any person who Silicon reasonably believes to be an officer of
Borrower, and Borrower shall indemnify and hold Silicon
harmless for any damages or loss suffered by Silicon as a
result of such reliance.
Silicon may, in its discretion, terminate the Exchange
Contracts at any time (a) that an Event of Default occurs or
(b) that there is no sufficient availability under the Credit
Limit and Borrower does not have available funds in its bank
account to satisfy the Foreign Exchange Reserve. If Silicon
terminates the Exchange Contracts, and without limitation of
the FX Indemnity Provisions (as referred to below), Borrower
agrees to reimburse Silicon for any and all fees, costs and
expenses relating thereto or arising in connection therewith.
Borrower shall not permit the total gross amount of all
Exchange Contracts on which delivery is to be effected and
settlement allowed in any two business day period to be more
than the Credit Limit, nor shall Borrower permit the total
gross amount of all Exchange Contracts to which Borrower is a
party, outstanding at any one time, to exceed the Credit Limit.
The Borrower shall execute all standard form applications and
agreements of Silicon in connection with the Exchange
Contracts, and without limiting any of the terms of such
applications and agreements the Borrower will pay all standard
fees and charges of Silicon in connection with the Exchange
Contracts.
Without limiting any of the other terms of this Agreement or
any such standard form applications and agreement of Silicon,
Borrower agrees to indemnify Silicon and hold it harmless, from
and against any and all claims, debts, liabilities, demands,
obligations, actions, costs and expenses (including, without
limitation, attorneys fees of counsel of Silicon's choice), of
every nature and description which it may sustain or incur,
based upon, arising out of, or in any way relating to any of
the Exchange Contracts or any transactions relating thereto or
contemplated
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thereby (collectively referred to as the "FX Indemnity
Provisions").
REPAYMENT: The Borrower shall repay on demand any amount drawn on a
letter of credit issued by Silicon. Silicon may, but is
not obligated to, add to the principal amount outstanding
under the Revolving Loan any amount drawn on a letter of
credit issued by Silicon. Any such amount shall be
subject to the terms applicable to the Revolving Loan.
ISSUANCE: The issuance of any letter of credit under this Agreement
is subject to Silicon's written approval and must be in
form and content satisfactory to Silicon and in favor of
a beneficiary reasonably acceptable to Silicon. The
Borrower shall execute Silicon's then-current application
forms, reimbursement agreement and related documents as a
condition to Silicon's issuance of any letter of credit.
FEES: The Borrower shall pay Silicon the fees and costs
customarily charged by Silicon (at the time of issuance
of the letter of credit) with respect to the issuance of
letters of credit.
FIRST TERM LOAN
AMOUNT: Not exceeding $250,000 in the aggregate.
PURPOSE: The Borrower shall use the proceeds of each disbursement
of the Term Loan solely for the purpose of purchasing the
new equipment identified in the draw request for such
disbursement.
INTEREST RATE: 9.5% per annum
AMORTIZATION: 36 equal monthly installments of principal commencing on
the first business day of August, 1994, and on the first
business day of each month thereafter through and
including the first business day of July, 1997, each such
installment shall be in the amount of 1/36 of the
principal amount of the term loan outstanding as of July
1, 1994.
DRAW
PROCEDURES: The Borrower shall submit to the Lender not less than
three business days prior to the date of any requested
disbursement of the Term Loan, a written request for
borrowing, together with such written documentation as
lender may require identifying the equipment to be
purchased with such requested disbursement. Unless such
requirement is expressly waived in writing by Silicon, no
disbursement of the Term Loan shall be made after July 1,
1994 and the amount of each disbursement of the Term Loan
shall not exceed 80% of the invoice price of the
equipment to be financed by such purchase.
LOAN ORIGINATION FEE:
(Section 1.3) $1,000. This fee was paid at closing.
SECOND TERM LOAN
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AMOUNT: Not exceeding $500,000 in the aggregate.
PURPOSE: The Borrower shall use the proceeds of each disbursement
of the Term Loan solely for the purpose of purchasing the
new equipment identified in the draw request for such
disbursement.
INTEREST RATE: A rate equal to the Prime Rate in effect from time
to time, plus 2.0% per annum.
AMORTIZATION: 36 equal monthly installments of principal commencing on
the first business day of October, 1994, and on the first
business day of each month thereafter through and
including the first business day of October, 1997, each
such installment shall be in the amount of 1/36 of the
principal amount of the Term Loan outstanding as of
October 1, 1994.
DRAW
PROCEDURES: The Borrower shall submit to the lender not less than
three business days prior to the date of any requested
disbursement of the term loan, a written request for
borrowing, together with such written documentation as
Lender may require identifying the equipment to be
purchased with such requested disbursement. Unless such
requirement is expressly waived in writing by Silicon, no
disbursement of the Term Loan shall be made after October
1, 1994 and the amount of each disbursement of the Term
Loan shall not exceed 80% of the invoice price of the
equipment to be financed by such purchase.
LOAN ORIGINATION FEE:
(Section 1.3) $2,500. This fee was paid at closing.
THIRD TERM LOAN
AMOUNT: An amount not to exceed the lesser of: (i) $750,000.00 at
any one time outstanding; or (ii) the amount of the
"Equipment Borrowing Base", as defined below. For
purposes of this Schedule, the "Equipment Borrowing Base"
shall mean the sum of (a) 80% of the invoice amount for
equipment purchased by Borrower after September 30, 1994.
Silicon shall have no obligation to advance against
taxes, freight charges, installation charges or other
similar amounts relating to Borrower's equipment, whether
or not such amounts are identified on the invoices
submitted to Silicon. Equipment to be included in the
Equipment Borrowing Base must be new equipment, at the
time of purchase by Borrower, owned by Borrower, in good
working order, must not be subject to any liens in favor
of any person or entity other than Silicon, and must be
subject to a first perfected security interest in favor
of Silicon. Silicon shall make advances under this Third
Term Loan from time to time, based on invoices and other
documentation as shall be requested by Silicon to support
such advances, but Silicon shall have no obligation to
make any advance under this term loan after March 25,
1996.
Borrower shall submit to Silicon such invoices, advance
requests and other information, in form acceptable to
Silicon, as Silicon shall require from time to
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time.
Once the total amount of the principal has been advanced
under this Third Term Loan, Borrower is no longer
entitled to further advances. Advances may be requested
in writing by Borrower or an authorized person. Silicon
may, but need not, require that all oral requests be
confirmed in writing. The unpaid principal balance owing
on this Term Loan at any time may be evidenced by
endorsements to this Schedule or by Silicon's internal
records, including daily computer print-outs.
PURPOSE: The borrower shall use the proceeds of each disbursement
of the Third Term Loan solely for the purpose of
purchasing the new equipment identified in the draw
request for such disbursement.
INTEREST RATE: The interest rate applicable to the Third Term loan shall
be a rate equal to the "Prime Rate" in effect from time
to time, plus 1.75% per annum. Interest calculations
shall be made on the basis of a 360-day year and the
actual number of days elapsed. "Prime Rate" means the
rate announced from time to time by Silicon as its "Prime
Rate"; it is a base rate upon which other rates charged
by Silicon are based, and it is not necessarily the best
rate available at Silicon. The interest rate shall change
on each date there is a change in the Prime Rate.
MATURITY DATE:
(Section 5.1) March 25, 1999, at which time all unpaid principal and
accrued but unpaid interest shall be due and payable.
AMORTIZATION: Borrower shall pay Silicon 12 monthly payments of
interest only commencing April 25, 1995. Commencing on
April 25, 1996, the Borrower shall pay Silicon 36 equal
monthly payments of principal, in the amount necessary to
repay fully the outstanding principal of the Third Term
loan in 36 payments, plus interest calculated as provided
in this Schedule. Subsequent payments are due on the 25th
day of each month thereafter.
In the event that $500,000 has been disbursed under the
Third Term Loan, that amount shall be automatically
segregated, and Borrower shall on the 25th day of the
next month commence paying Silicon 36 equal monthly
payments of principal in the amount necessary to repay
fully the outstanding $500,000 principal in 36 payments,
plus interest calculated as provided in this Schedule.
With regard to any amounts disbursed in excess of
$500,000, Borrower shall make monthly payments of
interest only until March 25, 1996; commencing April 25,
1996, Borrower shall make 36 equal monthly payments of
principal in the amount necessary to repay fully the
outstanding balance 36 payments, plus interest calculated
as provided in this Schedule.
DRAW
PROCEDURES: The Borrower shall submit to the Lender not less than
three business days prior to the date of any requested
disbursement of the Third Term Loan, a written request
for borrowing, together with such written documentation
as Lender may require identifying the equipment purchased
or to be purchased with such requested disbursement.
Unless such requirement is expressly waived in writing by
Silicon,
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no disbursement of the Third Term loan shall be made
after March 25, 1996, and the amount of each disbursement
of the Third Term Loan shall not exceed 80% of the
invoice price of the equipment to be financed by such
purchase.
LOAN ORIGINATION
FEE:
(Section 1.3) $1,000. This fee was paid at closing.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
PRIOR NAMES OF
BORROWER: Axon Corporation
(Section 3.2) Shapeware Corporation
TRADE NAMES OF
BORROWER: None
(Section 3.2)
OTHER LOCATIONS
AND ADDRESSES: Approximately $40,000 of inventory is located at
(Section 3.3) Prism Group, Inc., 00000 Xxxxxxxxxxx-Xxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000
MATERIAL ADVERSE
LITIGATION: None
(Section 3.10)
ADDITIONAL DUTIES OF THE BORROWER.
FINANCIAL
COVENANTS:
(Section 4.1) Borrower shall at all times comply with all of the
following covenants:
QUICK RATIO: Borrower shall maintain a ratio of Quick Assets (defined
below) to current liabilities less deferred revenue of
not less than 2.0:1.0 measured as of the end of each
fiscal quarter of Borrower.
MINIMUM TANGIBLE
NET WORTH: Borrower shall maintain a Minimum Tangible Net Worth (as
defined below) of not less than $28,275,000, measured
quarterly.
DEBT TO TANGIBLE
NET WORTH RATIO: Borrower shall maintain a ratio of total liabilities
(excluding deferred revenues and Subordinated Debt) to
Tangible Net Worth (including deferred revenue) of not
more than .75:1.0, measured quarterly.
TERM DEBT
COVERAGE: The sum of cash plus net line of credit availability shall
at all times exceed 2.5 times the outstanding balance on
the Term Loans, or the ratio of net earnings plus
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interest, taxes and noncash expenses divided by the sum of
current maturities of long term debt plus interest
(measured quarterly on an annualized basis) shall exceed
1.50:1.0.
DEFINITIONS: Except as otherwise provided in the loan and Security
Agreement or in this schedule, accounting terms not
specifically defined shall be construed, and all
accounting procedures shall be performed, in accordance
with generally accepted United States accounting
principles consistently applied. Capitalized terms used in
this Schedule and not otherwise defined herein shall have
the meanings ascribed to those terms in the text of the
loan and Security Agreement.
"Quick Assets" means cash on hand or on deposit in
banks, readily marketable securities issued by the
United States, readily marketable commercial paper
rated "A-1" by Standard & Poor's Corporation (or a
similar rating by a similar rating organization),
certificates of deposit and banker's acceptances, and
accounts receivable (net of allowance for doubtful
accounts).
"Subordinated Debt" means indebtedness for borrowed
money of Borrower which shall have been subordinated
to the Obligations of Borrower under the Loan and
Security Agreement, on terms and conditions
acceptable to Silicon.
"Tangible Net Worth" means total assets minus total
liabilities, plus Subordinated Debt, determined in
accordance with generally accepted accounting
principles, excluding however, all assets which would
be classified as intangible assets under generally
accepted accounting principles, including without
limitation goodwill, licenses, patents, trademarks,
trade names, copyrights, franchises, capitalized
software costs and deferred organizational costs.
"Term Loans" means the First Term Loan, the Second
Term Loan and the Third Term Loan, as defined above.
OTHER COVENANTS:
(Section 4.1) Borrower shall at all times comply with all of the
following additional covenants:
1. BANKING RELATIONSHIP. Borrower shall at all
times maintain its primary banking relationship with
Silicon.
2. SEC FILINGs. Borrower shall provide Silicon
with Borrower's 10-q and 10-k filings at the time
borrower files such documents with the Securities
Exchange Commission.
CONDITIONS TO
CLOSING: Before requesting any such advance of any Loan,
Borrower shall satisfy each of the following
conditions:
1. LOAN DOCUMENTS:
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Borrower shall have executed and delivered to Silicon all
loan documents required by Silicon.
2. DOCUMENTS RELATING
TO AUTHORITY, ETC.:
Silicon shall have received each of the following in form
and substance satisfactory to it:
(a) A certified copy of a Resolution adopted by the Board
of Directors of Borrower authorizing the execution,
delivery and performance of all loan documents executed
by Borrower in connection with this transaction; and
(b) Incumbency Certificates describing the office and
identifying the specimen signatures of the individuals
signing all such loan documents on behalf of Borrower.
3. INSURANCE:
Silicon shall have received evidence satisfactory to it
that all insurance required by this Agreement is in full
force and effect with all necessary loss payable
endorsements.
5. OTHER INFORMATION:
Silicon shall have received such other statements,
opinions, certificates, documents and information with
respect to matters contemplated by this Agreement as it
may reasonably request.
BORROWER: VISIO CORPORATION
By: /S/ Xx Xxxxx
Title: Controller
SILICON: SILICON VALLEY BANK
By: /S/ Xx Xxxxxxxx
Title: Senior Vice President
PAGE 8 - AMENDED AND RESTATED SCHEDULE TO LOAN AND SECURITY AGREEMENT
LOAN MODIFICATION AGREEMENT
BETWEEN: Visio Corporation, a Washington corporation ("Borrower"), whose
address is 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000
AND: Silicon Valley Bank ("Silicon"), whose address is 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000
DATE: February 28, 1997
This Loan Modification Agreement is entered into on the above date by
Borrower and Silicon.
I. Background. Borrower entered into a Loan and Security
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Agreement with Silicon in (as amended from time to time, the "Loan Agreement").
Capitalized terms used in this Loan Modification Agreement shall, unless
otherwise defined in this Agreement, have the meaning given to such terms in the
Loan Agreement.
Silicon and Borrower are entering into this Agreement to state the
terms and conditions of certain modifications to the Loan Agreement and the
Schedule, as amended prior to the date of this Agreement.
2. Modifications to Loan Agreement and Schedule.
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2.1 The Schedule to the Loan Agreement is hereby deleted and
replaced by the Amended and Restated Schedule to Loan and Security Agreement
attached to this Agreement.
2.2 Section 4.6(viii) of the Loan Agreement is deleted in its
entirety.
2.3 Borrower acknowledges and agrees that all Obligations,
including without limitation Borrower's obligation to repay amounts advanced by
Silicon to Borrower on the terms of the Loan Agreement and Schedule as modified
by this Loan Modification Agreement, are secured by all liens and security
interests granted by Borrower to Silicon in the Loan Agreement.
3. Conditions Precedent. This Loan Modification Agreement shall not
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take effect until Borrower delivers to Silicon a Certified Resolution of
Borrower and such other documents as Silicon shall reasonably require to give
effect to the terms of this Loan Modification Agreement.
4. No Other Modifications. Except as expressly modified by this Loan
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Modification Agreement, the terms of the Loan Agreement, as amended prior to the
date of this Loan Modification Agreement, shall remain unchanged and in full
force and effect. Silicon's agreement to modify the Loan Agreement pursuant to
this Loan Modification Agreement shall not obligate Silicon to make any future
modifications to the Loan Agreement or any other loan document. Nothing in this
Loan Modification Agreement shall constitute a satisfaction of any indebtedness
of any Borrower to Silicon. It is the intention of Silicon and Borrower to
retain as liable parties all makers and endorsers of the Loan Agreement or any
other loan document. No maker, endorser, or guarantor shall be released by
virtue of this Loan Modification Agreement. The terms of this paragraph shall
apply not only to this Loan Modification Agreement, but also to all subsequent
loan modification agreements.
Page 1 - LOAN MODIFICATION AGREEMENT
5. Representations and Warranties.
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5.1 The Borrower represents and warrants to Silicon that the
execution, delivery and performance of this Agreement are within the Borrower's
corporate powers, and have been duly authorized and are not in contravention of
law or the terms of the Borrower's articles of incorporation, bylaws or of any
undertaking to which the Borrower is a party or by which it is bound.
5.2 The Borrower understands and agrees that in entering into
this Agreement, Silicon is relying upon the Borrower's representations,
warranties and agreements as set forth in the Loan Agreement and other loan
documents. Borrower hereby reaffirms all representations and warranties in the
Loan Agreement, all of which are true as of the date of this Agreement.
BORROWER:
VISIO CORPORATION
By: /S/ Xx Xxxxx
Title: Controller
SILICON:
SILICON VALLEY BANK
By: /S/ Xx Xxxxxxxx
Title: Senior Vice President
Page 2 - LOAN MODIFICATION AGREEMENT
