TENTH LOAN MODIFICATION AGREEMENT
Exhibit 10.1
This Tenth Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as
of October 4, 2006, by and between SILICON VALLEY BANK, a California corporation, 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 (“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 4, 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 by a certain Sixth Loan Modification Agreement dated November 24,
2004, as amended by a certain Seventh Loan Modification Agreement dated December 21, 2004, as
amended by a certain Eighth Loan Modification Agreement dated December 30, 2005, and as further
amended by a certain Ninth Loan Modification Agreement dated as of February 10, 2006, and effective
as of February 7, 2006 (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 text, appearing in Section 6.7 thereof: |
"(b) Profitability. Borrower shall have quarterly net profit of at
least: (i) One Dollar ($1.00) for the quarter ending March 31, 2006;
and (ii) Five Hundred Thousand Dollars ($500,000.00) for the quarter
ending June 30, 2006, and for each quarter thereafter.
and inserting in lieu thereof the following:
"(b) Profitability. Borrower shall have quarterly: (i) net profit of
at least (A) $1.00 for the quarter ending Xxxxx 00, 0000, (X) Five
Hundred Thousand Dollars ($500,000.00) for the quarter ending June
30, 2006; (ii) net losses of not more than Two Million Five Hundred
Thousand Dollars ($2,500,000.00) for the quarter ending September 30,
2006; and (iii) net profit of at least Five Hundred
Thousand Dollars ($500,000.00) for the quarter ending December 31,
2006, and for each quarter thereafter.”
4. FEES. Borrower shall pay to Bank a modification fee equal to Five Thousand Dollars
($5,000.00), which fee shall be due on the date hereof and shall be deemed fully earned as of the
date hereof. 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 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.
6. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary
to reflect the changes described above.
7. 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.
8. 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.
9. 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.
10. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it
shall have been executed by Borrower and Bank.
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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 | |||||||
By:
|
/s/ Xxxxx Xxxxxxx | By: | /s/ Irina Case | |||||
Name:
|
Xxxxx Xxxxxxx | Name: | Irina Case | |||||
Title:
|
CFO | Title: | SVP | |||||
The undersigned, PRIMUS KNOWLEDGE SOLUTIONS, INC. (“Guarantor”), ratifies, confirms and
reaffirms, all and singular, the terms and conditions of (a) a certain Unlimited Guaranty dated
December 21, 2004 executed by Guarantor in favor of Bank (the “Guaranty”), and (b) a certain
Security Agreement dated as of December 21, 2004 by and between Guarantor and Bank (the “Security
Agreement”), and acknowledges, confirms and agrees that the Guaranty and Security Agreement shall
remain in full force and effect and shall in no way be limited by the execution of this Loan
Modification Agreement, or any other documents, instruments and/or agreements executed and/or
delivered in connection herewith.
| PRIMUS KNOWLEDGE SOLUTIONS, INC. | ||||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||||
| Name: | Xxxxx Xxxxxxx | |||||||
| Title: | CFO | |||||||
