EXHIBIT 10.36
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") dated as of November 13, 2001,
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 MOLDFLOW CORPORATION, a Delaware corporation
("Borrower"), provides the terms on which Bank shall lend to Borrower and
Borrower shall repay Bank. The parties agree as follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement shall be construed following
GAAP. Calculations and determinations must be made following GAAP. The term
"financial statements" includes the notes and schedules. The terms "including"
and "includes" always mean "including (or includes) without limitation," in this
or any Loan Document. Capitalized terms in this Agreement shall have the
meanings set forth in Section 12.
2 LOAN AND TERMS OF PAYMENT
2.1 PROMISE TO PAY. Borrower hereby unconditionally promises to pay Bank
the unpaid principal amount of all Credit Extensions and interest on the unpaid
principal amount of the Credit Extensions as and when due in accordance with
this Agreement.
2.1.1 Revolving Advances.
(a) Bank shall make Advances not exceeding (i) the Committed Line or
the Borrowing Base, whichever is less, minus (ii) the amount of all
outstanding Letters of Credit (including drawn but unreimbursed Letters of
Credit), minus (iii) the FX Reserve, and minus (iv) the aggregate
outstanding Advances hereunder (including any Cash Management Services).
Amounts borrowed under this Section may be repaid and reborrowed during the
term of this Agreement.
(b) To obtain an Advance, Borrower must notify Bank by facsimile or
telephone by 3:00 p.m. Eastern time on the Business Day the Advance is to
be made. If such notification is by telephone, Borrower must promptly
confirm the notification by delivering to Bank a completed Payment/Advance
Form in the form attached as EXHIBIT A. Bank shall credit Advances to
Borrower's deposit account. Bank may make Advances under this Agreement
based on instructions from a Responsible Officer or his or her designee or
without instructions if the Advances are necessary to meet Obligations
which have become due. Bank may rely on any telephone notice given by a
person whom Bank believes is a Responsible Officer or designee. Borrower
shall indemnify Bank for any loss Bank suffers due to such reliance.
(c) The Committed Line terminates on the Maturity Date, when the
principal amount of all Advances and the unpaid interest thereon, shall be
immediately payable.
2.1.2 LETTERS OF CREDIT SUBLIMIT.
(a) Bank shall issue or have issued Letters of Credit for Borrower's
account not exceeding (i) the lesser of the Committed Line or the Borrowing
Base, minus (ii) the outstanding principal balance of any Advances
(including any Cash Management Services), minus (iii) the amount of all
Letters of Credit (including drawn but unreimbursed Letters of Credit),
plus an amount equal to any Letter of Credit Reserves. The face amount of
outstanding Letters of Credit (including drawn but unreimbursed Letters of
Credit and any Letter of Credit Reserve) may not exceed Five Million
Dollars ($5,000,000.00). Borrower's Letter of Credit reimbursement
obligation shall be secured by cash on terms acceptable to Bank on and
after (i) the Maturity Date if the term of this Agreement is not extended
by Bank, or (ii) the occurrence of an Event of Default hereunder. All
Letters of Credit shall be, in form and substance, acceptable to Bank in
its sole discretion and shall be subject to the terms and
conditions of Bank's form of standard Application and Letter of Credit
Agreement. Borrower agrees to execute any further documentation in
connection with the Letters of Credit as Bank may reasonably request.
(b) The obligation of Borrower to immediately reimburse Bank for
drawings made under Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement and such Letters of Credit, under all circumstances
whatsoever. Borrower shall indemnify, defend, protect, and hold Bank
harmless from any loss, cost, expense or liability, including, without
limitation, reasonable attorneys' fees, arising out of or in connection
with any Letters of Credit.
(c) Borrower may request that Bank issue a Letter of Credit payable in
a currency other than United States Dollars. If a demand for payment is
made under any such Letter of Credit, Bank shall treat such demand as an
Advance to Borrower of the equivalent of the amount thereof (plus cable
charges) in United States currency at the then prevailing rate of exchange
in San Francisco, California, for sales of that other currency for cable
transfer to the country of which it is the currency.
(d) Upon the issuance of any letter of credit payable in a currency
other than United States Dollars, Bank shall create a reserve (the "Letter
of Credit Reserve") under the Committed Line for letters of credit against
fluctuations in currency exchange rates, in an amount equal to ten percent
(10%) of the face amount of such letter of credit. The amount of such
reserve may be amended by Bank from time to time to account for
fluctuations in the exchange rate. The availability of funds under the
Committed Line shall be reduced by the amount of such reserve for so long
as such letter of credit remains outstanding.
2.1.3 FOREIGN EXCHANGE SUBLIMIT. If there is availability under the
Committed Line and the Borrowing Base, then Borrower may enter in foreign
exchange forward contracts with the Bank under which Borrower commits to
purchase from or sell to Bank a set amount of foreign currency more than one
business day after the contract date (the "FX Forward Contract"). Bank shall
subtract 10% of each outstanding FX Forward Contract from the foreign exchange
sublimit which is a maximum of Five Million Dollars ( $5,000,000.00) (the "FX
Reserve"). The total FX Forward Contracts at any one time may not exceed 10
times the amount of the FX Reserve. Bank may terminate the FX Forward Contracts
if an Event of Default occurs.
2.1.4 CASH MANAGEMENT SERVICES SUBLIMIT. Borrower may use up to Five
Million Dollars ($5,000,000.00) for the Bank's Cash Management Services, which
may include merchant services, direct deposit of payroll, business credit card,
and check cashing services identified in the various cash management services
agreements related to such services Cash Management Services Agreement (the
"Cash Management Services"). Any amounts owed to the Bank in connection with the
Cash Management Services Sublimit shall at all times reduce the amount otherwise
available for Credit Extensions under the Committed Line. Any amounts Bank pays
on behalf of Borrower or any amounts that are not paid by Borrower for any Cash
Management Services will be treated as Advances under the Committed Line and
will accrue interest at the interest rate applicable to Advances.
2.1.5 UNDISBURSED CREDIT EXTENSIONS. The Bank's obligation to lend the
undisbursed portion of the Credit Extensions shall terminate if there has been a
material adverse change in the general affairs, management, results of
operation, condition (financial or otherwise) or the prospects of Borrower,
whether or not arising from transactions in the ordinary course of business, or
there has been any material adverse deviation by Borrower from the most recent
business plan of Borrower presented to and accepted by Bank prior to the
execution of this Agreement.
2.2 OVERADVANCES. If Borrower's Obligations under Section 2.1.1, 2.1.2,
2.1.3, and 2.1.4 exceed the lesser of either (i) the Committed Line or (ii) the
Borrowing Base, Borrower must immediately pay in cash to Bank the excess.
2.3 INTEREST RATE; PAYMENTS.
(a) INTEREST RATE. Advances accrue interest on the outstanding
principal balance at a per annum rate equal to the Bank's Prime Rate. After
an Event of Default, Obligations shall bear interest at five percent (5.0%)
above the rate effective immediately before the Event of Default. The
interest rate shall increase or decrease when the Prime Rate changes.
Interest is computed on the basis of a 360 day year for the actual number
of days elapsed.
(b) PAYMENTS. Interest is payable on the twenty-seventh day of each
month. Bank may debit any of Borrower's deposit accounts including Account
Number __________ for principal and interest payments or any amounts
Borrower owes Bank. Bank shall promptly notify Borrower when it debits
Borrower's accounts. These debits are not a set-off. Payments received
after 12:00 noon Eastern time are considered received at the opening of
business on the next Business Day. When a payment is due on a day that is
not a Business Day, the payment is due the next Business Day and additional
fees or interest, as applicable, shall continue to accrue.
2.4 FEES. Borrower shall pay to Bank:
(a) FACILITY FEE. A fully earned, non-refundable facility fee of Nine
Thousand Three Hundred and Seventy-Five Dollars $9,375.00 due on the
Closing Date; and
(b) BANK EXPENSES. All Bank Expenses (including reasonable attorneys'
fees and expenses incurred through and after the Closing Date) when due.
3 CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. The obligation of
Bank to make the initial Credit Extension is subject to the condition precedent
that Bank shall have received, in form and substance satisfactory to Bank, the
following:
(a) this Agreement;
(b) a certificate of the Secretary of Borrower with respect to
articles, bylaws, incumbency and resolutions authorizing the execution and
delivery of this Agreement;
(c) a legal opinion of Borrower's counsel, in form and substance
acceptable to Bank;
(d) payment of the fees and Bank Expenses then due specified in
Section 2.4 hereof;
(e) Certificate of Foreign Qualification (if applicable);
(f) Certificate of Good Standing/Legal Existence; and
(g) such other documents, and completion of such other matters, as
Bank may reasonably deem necessary or appropriate.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS. Bank's obligations to
make each Credit Extension, including the initial Credit Extension, is subject
to the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Article 4 shall be
materially true on the date of the Payment/Advance Form and on the
effective date of each Credit Extension and no Event of Default shall have
occurred and be continuing, or result from the Credit Extension. Each
Credit Extension is Borrower's representation and warranty on that date
that the representations and warranties in Article 4 remain materially
true.
4 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
4.1 DUE ORGANIZATION AND AUTHORIZATION. Borrower is duly existing and in
good standing in its state of formation and qualified and licensed to do
business in, and in good standing in, any state in which the conduct of its
business or its ownership of property requires that it be qualified except where
the failure to do so could not reasonably be expected to cause a Material
Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's organizational documents,
nor constitute an event of default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to which or by
which it is bound in which the default could reasonably be expected to cause a
Material Adverse Change.
4.2 ACCOUNTS. The Eligible Accounts are bona fide, existing obligations,
and the service or property has been performed or delivered to the account
debtor or its agent for immediate shipment to and unconditional acceptance by
the account debtor; provided however that Eligible Accounts representing
software maintenance obligations on behalf of the Borrower or its Subsidiaries
shall have the requisite services performed over the period set forth in the
maintenance agreement. Borrower has no notice of any actual or imminent
Insolvency Proceeding of any account debtor whose accounts are an Eligible
Account in any Borrowing Base Certificate.
4.3 LITIGATION. Except as shown in the Schedule, there are no actions or
proceedings pending or, to the knowledge of Borrower's Responsible Officers,
threatened by or against Borrower or any Subsidiary in which an adverse decision
could reasonably be expected to cause a Material Adverse Change.
4.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All consolidated
financial statements for Borrower and any Subsidiary delivered to Bank fairly
present in all material respects Borrower's consolidated financial condition and
Borrower's consolidated results of operations. There has not been any material
deterioration in Borrower's consolidated financial condition since the date of
the most recent financial statements submitted to Bank.
4.5 SOLVENCY. The fair salable value of Borrower's assets (including
goodwill minus disposition costs) exceeds the fair value of its liabilities; the
Borrower is not left with unreasonably small capital after the transactions in
this Agreement; and Borrower is able to pay its debts (including trade debt) as
they mature.
4.6 REGULATORY COMPLIANCE. Borrower is not an "investment company" or a
company "controlled" by an "investment company" under the Investment Company
Act. Borrower is not engaged as one of its important activities in extending
credit for margin stock (under Regulations T and U of the Federal Reserve Board
of Governors). Borrower has complied in all material respects with the Federal
Fair Labor Standards Act. Borrower has not violated any laws, ordinances or
rules, the violation of which could reasonably be expected to cause a Material
Adverse Change. None of Borrower's or any Subsidiary's properties or assets has
been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge,
by previous Persons, in disposing, producing, storing, treating, or transporting
any hazardous substance other than legally. Borrower and each Subsidiary has
timely filed all required tax returns and paid, or made adequate provision to
pay, all material taxes, except those being contested in good faith with
adequate reserves under GAAP. Borrower and each Subsidiary has obtained all
consents, approvals and authorizations of, made all declarations or filings
with, and given all notices to, all government authorities that are necessary to
continue its business as currently conducted, except where the failure to make
such declaration, notices or filings would not reasonably be expected to cause a
Material Adverse Change.
4.7 FULL DISCLOSURE. No written representation, warranty or other statement
of Borrower in any certificate or written statement given to Bank taken together
with all such written certificates and written statements given to Bank contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained in the certificates or statements not
misleading it being recognized by Bank that the projections and forecasts
provided by Borrower in good faith and based upon reasonable assumptions are not
viewed as facts and that actual results during the period or periods covered by
such projections and forecasts may differ from the projected or forecasted
results.
5 AFFIRMATIVE COVENANTS
Borrower shall do all of the following:
5.1 GOVERNMENT COMPLIANCE. Borrower shall maintain its legal existence and
good standing in its jurisdiction of formation and maintain qualification in
each jurisdiction in which the failure to so qualify would reasonably be
expected to cause a material adverse effect on Borrower's business or
operations. Borrower shall comply, and have each Subsidiary comply, with all
laws, ordinances and regulations to which it is subject, noncompliance with
which could have a material adverse effect on Borrower's business or operations
or be expected to cause a Material Adverse Change.
5.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower shall deliver to Bank: (i) no later than thirty(30) days
after the last day of each quarter, and if there are Advances outstanding
then no later than thirty (30) days after the last day of each month, a
company prepared consolidated balance sheet and income statement covering
Borrower's consolidated operations during the period certified by a
Responsible Officer and in a form acceptable to Bank; (ii) as soon as
available, but no later than one hundred and twenty (120) days after the
last day of Borrower's fiscal year, audited consolidated financial
statements prepared under GAAP, consistently applied, together with an
unqualified opinion on the financial statements from an independent
certified public accounting firm reasonably acceptable to Bank; (iii)
within five (5) days of filing, copies of all statements, reports and
notices made available to Borrower's security holders and all reports on
Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission;
(iv) a prompt report of any legal actions pending or threatened against
Borrower or any Subsidiary that could result in damages or costs to
Borrower or any Subsidiary of Five Hundred Thousand Dollars ($500,000.00)
or more, in the aggregate; and (v) or other financial information
reasonably requested by Bank.
(b) Borrower shall deliver to Bank a Borrowing Base Certificate signed
by a Responsible Officer in the form of EXHIBIT B, with aged listings of
accounts receivable (by invoice date): (i) within twenty-five (25) days of
the last day of each month in which Advances were outstanding, and (ii)
within twenty-five (25) days of the last day of each quarter.
(c) Within thirty (30) days after the last day of each quarter,
Borrower shall deliver to Bank with the quarterly financial statements a
Compliance Certificate signed by a Responsible Officer in the form of
EXHIBIT C.
(d) In the event that Advances are outstanding, allow Bank to audit
Borrower's accounts at Borrower's expense. Such audits shall be conducted
no more often than once every twelve (12) months unless an Event of Default
has occurred and is continuing. Notwithstanding the foregoing, the next
such audit of the Borrower's Account shall occur on or before sixty (60)
days after the initial Advance under this Agreement (the "Initial Audit").
5.3 INVENTORY; RETURNS. Returns and allowances between Borrower and its
account debtors shall follow Borrower's customary practices as they exist at the
Closing Date. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims that involve more than One Hundred Thousand Dollars
($100,000.00).
5.4 TAXES. Borrower shall make, and cause each Subsidiary to make, timely
payment of all material federal, state, and local taxes or assessments (other
than taxes and assessments which Borrower is contesting in good faith, with
adequate reserves maintained in accordance with GAAP) and will deliver to Bank,
on demand, appropriate certificates attesting to such payments.
5.5 INSURANCE. Borrower shall keep its assets insured for risks and in
amounts, standard for Borrower's industry.
5.6 PRIMARY ACCOUNTS. Borrower shall maintain its primary operating
accounts with the Bank. The outstanding balance of Borrower's
investment/securities account, held at the Bank, shall as of the date of this
Agreement equal Ten Million Dollars ($10,000,000.00) in cash and marketable
securities. In addition to the foregoing requirement, in the event that Bank
offers competitive rates of return, Borrower shall use its best efforts to
deposit, beginning with the date which is six (6) months after the Closing Date,
an additional aggregate amount of Five Million Dollars ($5,000,000.00) in
investment and securities accounts with Bank. Such amounts are initial balances
only and Borrower and Bank agree that such amounts may decrease from time to
time on changes in market value or transfers of cash in accordance with this
Agreement.
5.7 FINANCIAL COVENANTS.
Borrower shall have on a consolidated basis, as of the last day of each
quarter, unless otherwise noted:
LIQUIDITY. The Borrower shall have unrestricted cash or marketable
securities in the amount of at least Thirty Million Dollars
($30,000,000.00)
PROFITABILITY. Borrower shall have (i) quarterly net loss not to
exceed Five Hundred Thousand Dollars ($500,000.00) for Borrower's
fiscal quarter ending December 31, 2001, and (ii) a quarterly net
profit of at least One Dollar ($1.00) thereafter. Profitability shall
be defined as the Borrower's net income after taxes, but prior to
depreciation and amortization.
5.8 FURTHER ASSURANCES. Borrower shall execute any further instruments and
take further action as Bank reasonably requests to effect the purposes of this
Agreement.
6 NEGATIVE COVENANTS
Borrower shall not do any of the following without the Bank's prior written
consent which shall not be unreasonably withheld.
6.1 DISPOSITIONS. Convey, sell, lease, transfer or otherwise dispose of
(collectively a "Transfer"), or permit any of its Subsidiaries to Transfer, all
or any part of its business or property, except for Transfers (i) of Inventory
in the ordinary course of business; (ii) of licenses and similar arrangements
for the use of the property of Borrower or its Subsidiaries in the ordinary
course of business; (iii) of worn-out or obsolete Equipment; (iv) other
disposition of real property or other assets in an amount not to exceed Two
Million Dollars ($2,000,000.00) per fiscal year; and (v) Transfers between
Borrower and any Subsidiary or between Subsidiaries.
6.2 CHANGES IN BUSINESS, MANAGEMENT OR BUSINESS LOCATIONS. Engage in or
permit any of its Subsidiaries to engage in any business other than the
businesses currently engaged in by Borrower or have a material change in the
management of the Borrower.
6.3 MERGERS OR ACQUISITIONS. Merge or consolidate, or permit any of its
Subsidiaries to merge or consolidate, with any other Person, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person other than (i) mergers,
consolidations, capital contributions, acquisitions, or other like transactions
between Parent and any Subsidiary or between Subsidiaries, (ii) acquisitions by
Borrower of all or substantially all of the capital stock or property of another
Person (each instance of the above
defined as a "Transaction"); provided, however, that (A) each Transaction does
not decrease Borrower's cash and cash equivalents by more than Seven Million
Five Hundred Thousand Dollars ($7,500,000.00); (B) the aggregate Transactions in
any fiscal year do not decrease Borrower's cash and cash equivalents by more
than Fifteen Million Dollars ($15,000,000.00); (C) each Transaction will not
result, whether solely as a result of the passage of time, or otherwise, in the
occurrence of an Event of Default; and (D) Borrower is the surviving entity.
6.4 INDEBTEDNESS. Create, incur, assume, or be liable for any Indebtedness,
or permit any Subsidiary to do so, other than Permitted Indebtedness.
6.5 ENCUMBRANCE. Create, incur, or allow any Lien on any of its property,
or assign or convey any right to receive income, including the sale of any
Accounts, or permit any of its Subsidiaries to do so, except for Permitted
Liens.
6.6 DISTRIBUTIONS; INVESTMENTS. (i) Directly or indirectly acquire or own
any Person, except as provided in Section 6.3 herein, or make any Investment in
any Person, other than Permitted Investments, or permit any of its Subsidiaries
to do so; or (ii) pay any dividends or make any distribution or payment or
redeem, retire or purchase any capital stock, except for (A) repurchases of
stock from former employees or directors of Borrower under the terms of
applicable repurchase agreements in an aggregate amount not to exceed Two
Hundred Thousand Dollars ($200,000.00) in the aggregate in any fiscal year,
provided that no Event of Default has occurred, is continuing or would exist
after giving effect to the repurchases or (B) repurchases of up to 500,000
shares of Common Stock by the Borrower in the open market in accordance with the
repurchase authority given by the Board of Directors of Borrower or (C)
transactions with Affiliates which would be permitted pursuant to Section 6.7
hereof.
6.7 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter or permit
any material transaction with any Affiliate, except transactions that are in the
ordinary course of Borrower's business, upon fair and reasonable terms that are
no less favorable to Borrower than would be obtained in an arm's length
transaction with a non-affiliated Person.
6.8 SUBORDINATED DEBT. Make or permit any payment on any Subordinated Debt,
except under the terms of the Subordinated Debt, or amend any provision in any
document relating to the Subordinated Debt, without Bank's prior written
consent.
6.9 COMPLIANCE. Become an "investment company" or a company controlled by
an "investment company", under the Investment Company Act of 1940 or undertake
as one of its important activities extending credit to purchase or carry margin
stock, or use the proceeds of any Credit Extension for that purpose; fail to
meet the minimum funding requirements of ERISA, permit a Reportable Event or
Prohibited Transaction, as defined in ERISA, to occur; fail to comply with the
Federal Fair Labor Standards Act or violate any other law or regulation, if the
violation could reasonably be expected to have a material adverse effect on
Borrower's business or operations or would reasonably be expected to cause a
Material Adverse Change.
7 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
7.1 PAYMENT DEFAULT. Borrower fails to pay any of the Obligations within
three (3) days after their due date. During the additional period the failure to
cure the default is not an Event of Default (but no Credit Extension shall be
made during the cure period);
7.2 COVENANT DEFAULT. Borrower does not perform any obligation in Section 5
or violates any covenant in Section 6 or does not perform or observe any other
material term, condition or covenant in this Agreement, any Loan Documents, or
in any agreement between Borrower and Bank and as to any default under a term,
condition or covenant that can be cured, has not cured the default within ten
(10) days after it occurs, or if the default cannot be cured within ten (10)
days or cannot be cured after Borrower's attempts in the ten (10) day period,
and the default may be cured within a reasonable time, then Borrower shall have
additional time, (of not more than thirty (30) days) to attempt to cure the
default. Grace periods provided under this section shall not apply to financial
covenants or any other covenants that are required to be satisfied, completed or
tested by a date certain. During the additional period the failure to cure the
default is not an Event of Default (but no Credit Extensions shall be made
during the cure period);
7.3 MATERIAL ADVERSE CHANGE. A Material Adverse Change occurs;
7.4 ATTACHMENT. (i) Any material portion of Borrower's assets is attached,
seized, levied on, or comes into possession of a trustee or receiver and the
attachment, seizure or levy is not removed in ten (10) days; (ii) the service of
process upon the Borrower seeking to attach, by trustee or similar process any
funds of the Borrower on deposit with the Bank; (iii) Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business; (iv) a judgment or other claim becomes a Lien on a material portion of
Borrower's assets; or (v) a notice of lien, levy, or assessment is filed against
any of Borrower's assets in an amount in excess of One Million Dollars
($1,000,000.00) in the aggregate, at any time, by any government agency and not
paid within ten (10) days after Borrower receives notice. These are not Events
of Default if stayed or if a bond is posted pending contest by Borrower (but no
Credit Extensions shall be made during the cure period);
7.5 INSOLVENCY. (i) Borrower becomes insolvent; (ii) Borrower begins an
Insolvency Proceeding; or (iii) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within forty-five (45) days (but no Credit
Extensions shall be made before any Insolvency Proceeding is dismissed);
7.6 OTHER AGREEMENTS. If there is a default in any agreement to which
Borrower is a party with a third party or parties resulting in a right by such
third party or parties, whether or not exercised, to accelerate the maturity of
any Indebtedness in an amount in excess of Two Hundred Fifty Thousand Dollars
($250,000.00) or that could result in a Material Adverse Change;
7.7 JUDGMENTS. If a judgment or judgments for the payment of money in an
amount, individually or in the aggregate, of at least Two Hundred Fifty Thousand
Dollars ($250,000.00) shall be rendered against Borrower and shall remain
unsatisfied and unstayed for a period of ten (10) days (provided that no Credit
Extensions will be made prior to the satisfaction or stay of such judgment);
7.8 MISREPRESENTATIONS. If Borrower or any Person acting for Borrower makes
any material misrepresentation or material misstatement now or later in any
warranty or representation in this Agreement or in any writing delivered to Bank
or to induce Bank to enter this Agreement or any Loan Document.
8 BANK'S RIGHTS AND REMEDIES
8.1 RIGHTS AND REMEDIES. When an Event of Default occurs and continues Bank
may, without notice or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are
immediately due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and
Bank; and
(c) Apply to the Obligations any (i) balances and deposits of Borrower
it holds, or (ii) any amount held by Bank owing to or for the credit or the
account of Borrower.
8.2 BANK EXPENSES. Bank Expenses shall be immediately due and payable, and
shall bear interest at the then applicable rate. No payments by Bank shall be
deemed an agreement to make similar payments in the future or Bank's waiver of
any Event of Default.
8.3 REMEDIES CUMULATIVE. Bank's rights and remedies under this Agreement,
the Loan Documents, and all other agreements are cumulative. Bank has all rights
and remedies provided under the Code, by law, or in equity. Bank's exercise of
one right or remedy is not an election, and Bank's waiver of any Event of
Default is not a continuing waiver. Bank's delay is not a waiver, election, or
acquiescence. No waiver hereunder shall be effective unless signed by Bank and
then is only effective for the specific instance and purpose for which it was
given.
8.4 DEMAND WAIVER. Borrower waives demand, notice of default or dishonor,
notice of payment and nonpayment, notice of any default, nonpayment at maturity,
release, compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Bank on which Borrower is
liable.
9 NOTICES
All notices or demands by any party to this Agreement or any other related
agreement must be in writing and be personally delivered or sent by an overnight
delivery service, by certified mail, postage prepaid, return receipt requested,
or by telefacsimile at the addresses listed below. Either Bank or Borrower may
change its notice address by giving the other written notice.
If to Borrower: Moldflow Corporation
000 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx, Esquire
FAX: (000) 000-0000
If to Bank: Silicon Valley Bank
One Newton Executive Park, Suite 200
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esquire
FAX: (000) 000-0000
10 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
MASSACHUSETTS LAW GOVERNS THE LOAN DOCUMENTS WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. BORROWER AND BANK EACH SUBMIT TO THE EXCLUSIVE JURISDICTION
OF THE STATE AND FEDERAL COURTS IN MASSACHUSETTS. NOTWITHSTANDING THE FOREGOING,
THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE
BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE BANK'S RIGHTS AGAINST THE
BORROWER OR ITS PROPERTY.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT,
BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR
BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER
WITH ITS COUNSEL.
11 GENERAL PROVISIONS
11.1 SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit of
the successors and permitted assigns of each party. Borrower may not assign this
Agreement or any rights or Obligations under it without Bank's prior written
consent which may be granted or withheld in Bank's discretion. Bank has the
right, without the consent of or notice to Borrower, to sell, transfer,
negotiate, or grant participation in all or any part of, or any interest in,
Bank's obligations, rights and benefits under this Agreement, the Loan Documents
or any related agreement.
11.2 INDEMNIFICATION. Borrower hereby indemnifies, defends and holds the
Bank and its officers, employees and agents harmless against: (a) all
obligations, demands, claims, and liabilities asserted against the Bank by any
other party, other than the Bank or its affiliates, in connection with the
transactions contemplated by the Loan Documents, except for obligations,
demands, claims and liabilities based on the Bank's gross negligence or willful
misconduct; and (b) all losses or Bank Expenses incurred, or paid by Bank from,
following, or consequential to transactions between Bank and Borrower (including
reasonable attorneys' fees and expenses), except for losses caused by Bank's
gross negligence or willful misconduct.
11.3 RIGHT OF SET-OFF. Borrower and any guarantor hereby grant to Bank, a
lien, security interest and right of setoff as security for all Obligations to
Bank, whether now existing or hereafter arising upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of the Bank or in
transit to any of them; provided, however that such lien, security interest and
right of setoff shall be limited to the dollar amount of the Obligations as they
exist on the date of such setoff. At any time after the occurrence and during
the continuance of an Event of Default, without demand or notice, Bank may set
off the same or any part thereof and apply the same to any liability or
obligation of Borrower and any guarantor even though unmatured and regardless of
the adequacy of any other collateral securing the loan; provided, however that
such set off shall be limited to the dollar amount of the Obligations as they
exist on the date of such setoff.
11.4 TIME OF ESSENCE. Time is of the essence for the performance of all
Obligations in this Agreement.
11.5 SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability of any
provision.
11.6 AMENDMENTS IN WRITING; INTEGRATION. All amendments to this Agreement
must be in writing signed by both Bank and Borrower. This Agreement and the Loan
Documents represent the entire agreement about this subject matter, and
supersede prior negotiations or agreements. All prior agreements,
understandings, representations, warranties, and negotiations between the
parties about the subject matter of this Agreement and the Loan Documents merge
into this Agreement and the Loan Documents.
11.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, are an original, and all taken together, constitute
one Agreement.
11.8 SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in full force while any Obligations remain outstanding. The
obligation of Borrower in Section 11.2 to indemnify Bank shall survive until the
statute of limitations with respect to such claim or cause of action shall have
run.
11.9 CONFIDENTIALITY. In handling any confidential information, Bank shall
exercise the same degree of care that it exercises for its own proprietary
information, but disclosure of information may be made: (i) to Bank's
subsidiaries or affiliates in connection with their business with Borrower; (ii)
to prospective transferees or purchasers of any interest in the Credit
Extensions (provided, however, Bank shall use commercially reasonable efforts in
obtaining such prospective transferee's or purchaser's agreement to the terms of
this provision); (iii) as required by law, regulation, subpoena, or other order,
(iv) as required in connection with Bank's examination or audit; and (v) as Bank
considers appropriate in exercising remedies under this Agreement. Confidential
information does not include information that either: (a) is in the public
domain or in Bank's possession when disclosed to Bank, or becomes part of the
public domain after disclosure to Bank; or (b) is disclosed to Bank by a third
party, if Bank does not know that the third party is prohibited from disclosing
the information.
12 DEFINITIONS
12.1 DEFINITIONS.
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing, as such definition may be amended from time to time according to the
Code.
"ADVANCE" or "ADVANCES" is a loan advance (or advances) under the Committed
Line.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs or
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the assets, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"BORROWING BASE" is (i) eighty percent (80 %) of Eligible Accounts, plus
(ii) seventy percent (70%) of the Borrower's Eligible Foreign Accounts, as
determined by Bank from Borrower's most recent Borrowing Base Certificate;
provided however, that Bank may lower the percentage of the Borrowing Base after
performing an audit of Borrower's assets; provided further, that Bank gives
thirty (30) days written notice to Borrower.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on which
the Bank is closed.
"CASH MANAGEMENT SERVICES" are defined in Section 2.1.4.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the Uniform Commercial Code as adopted in Massachusetts, as
amended and as may be amended and in effect from time to time.
"COMMITTED LINE" is an Advance or Advances of up to Five Million Dollars
($5,000,000.00)
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that
Person; and (iii) all obligations from any interest rate, currency or commodity
swap agreement, interest rate cap or collar agreement, or other agreement or
arrangement designated to protect a Person against fluctuation in interest
rates, currency exchange rates or commodity prices; but "Contingent Obligation"
does not include endorsements in the ordinary course of business. The amount of
a Contingent Obligation is the stated or determined amount of the primary
obligation for which the Contingent Obligation is made or, if not determinable,
the maximum reasonably anticipated liability for it determined by the Person in
good faith; but the amount may not exceed the maximum of the obligations under
the guarantee or other support arrangement.
"CREDIT EXTENSION" is each Advance (including Cash Management Services),
Letter of Credit, FX Forward Contract or any other extension of credit by Bank
for Borrower's benefit pursuant to this Agreement.
"ELIGIBLE ACCOUNTS" are Accounts in the ordinary course of Borrower's
business that meet all Borrower's representations and warranties in Section 4.2;
BUT Bank may change eligibility standards by giving Borrower thirty (30) days
prior written notice. Unless Bank agrees otherwise in writing, Eligible Accounts
shall not include:
(a) Accounts that the account debtor has not paid within ninety (90)
days of invoice date;
(b) Accounts for an account debtor, fifty percent (50%) or more of
whose Accounts have not been paid within ninety (90) days of invoice date;
(c) Credit balances over ninety (90) days from invoice date;
(d) Accounts for an account debtor, including Affiliates, whose total
obligations to Borrower exceed twenty-five (25%) of all Accounts, for the
amounts that exceed that percentage, unless Bank approves in writing;
(e) Accounts for which the account debtor does not have its principal
place of business in the United States;
(f) Accounts for which the account debtor is a federal, state or local
government entity or any department, agency, or instrumentality thereof ;
(g) Accounts for which Borrower owes the account debtor, but only up
to the amount owed (sometimes called "contra" accounts, accounts payable,
customer deposits or credit accounts);
(h) Accounts for demonstration or promotional equipment, or in which
goods are consigned, sales guaranteed, sale or return, sale on approval,
xxxx and hold, or other terms if account debtor's payment may be
conditional;
(i) Accounts for which the account debtor is Borrower's Affiliate,
officer, employee, or agent (which term shall not include authorized
distributors of the Borrower's products;
(j) Accounts in which the account debtor disputes liability or makes
any claim and Bank believes there may be a basis for dispute (but only up
to the disputed or claimed amount), or if the Account Debtor is subject to
an Insolvency Proceeding, or becomes insolvent, or goes out of business;
(k) Accounts for which Bank reasonably determines collection to be
doubtful.
"ELIGIBLE FOREIGN ACCOUNTS" are Eligible Accounts for which the
account debtor does not have its principal place of business in the United
States.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"FX FORWARD CONTRACT" is defined in Section 2.1.3.
"FX RESERVE" is defined in Section 2.1.3.
"GAAP" is generally accepted accounting principles, as applied in the
United States.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"INITIAL AUDIT" is defined in Section 6.2.
"INSOLVENCY PROCEEDING" is any proceeding by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INVENTORY" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"LETTER OF CREDIT" means a letter of credit or similar undertaking issued
by Bank pursuant to Section 2.1.2.
"LETTER OF CREDIT RESERVE" has the meaning set forth in Section 2.1.2.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"MATERIAL ADVERSE CHANGE " is: (i) a material adverse change in the
business, operations, or condition (financial or otherwise) of the Borrower; or
(ii) a material impairment of the prospect of repayment of any portion of the
Obligations ; or (iii) Bank determines, based upon information available to it
and in its reasonable judgment, that there is a substantial likelihood that
Borrower shall fail to comply in any material respect with one or more of the
financial covenants in Section 6 during the next succeeding financial reporting
period;
"MATURITY DATE" with respect to the Committed Line is one day prior to the
one (1) year anniversary of the Closing Date.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letters of credit (drawn or
undrawn), cash management services, and foreign exchange contracts, if any, and
including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Bank.
"PERMITTED INDEBTEDNESS" is:
(a) Borrower's indebtedness to Bank under this Agreement or the Loan
Documents;
(b) Indebtedness existing on the Closing Date and shown on the
Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business; and
(e) Indebtedness secured by Permitted Liens;
(f) Extensions, refinancings, modifications, amendments and
restatements of any items of Permitted Indebtedness (a) through (f) above,
provided that the principal amount thereof is not increased or the terms
thereof are not modified to impose more burdensome terms upon Borrower or
its Subsidiary, as the case may be;
(g) Intercompany Indebtedness;
(h) Guarantees by Borrower or its Subsidiaries of lease or other
Obligations arising in the ordinary course of business;
(i) Capital support letters issued by the Borrower or a Subsidiary on
behalf of foreign wholly-owned Subsidiaries to the extent required by the
applicable laws of the jurisdictions in which such Subsidiaries are located
("Capital Support Letters"); and
(j) Indebtedness arising from foreign exchange contracts with banking
institutions other than the Bank.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the Investments Schedule and existing on the
Closing Date;
(b) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States or its agency or any state maturing within
1 year from its acquisition, (ii) commercial paper maturing no more than 1
year after its creation and having the highest rating from either Standard
& Poor's Corporation or Xxxxx'x Investors Service, Inc., and (iii)
certificates of deposit issued maturing no more than 1 year after issue;
(iv) any other investments administered through the Bank; and (v) any
Investments permitted by Borrower's investment policy, as amended from time
to time, provided that such investment policy (and any such amendment
thereto) has been provided to the Bank;
(c) Transactions pursuant to Section 6.3 hereof;
(d) Investments in Subsidiaries or Investments by one Subsidiary in
another; and
(e) Capital Support Letters.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for
which Borrower maintains adequate reserves on its Books;
(c) Purchase money Liens (i) on equipment acquired or held by Borrower
incurred for financing the acquisition of the Equipment, or (ii) existing
on equipment when acquired, IF the Lien is confined to the property and
improvements and the proceeds of the equipment
(d) Leases or subleases and non-exclusive licenses or sublicenses
granted in the ordinary course of Borrower's business;
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), BUT any
extension, renewal or replacement Lien must be limited to the property
encumbered by the existing Lien and the principal amount of the
indebtedness may not increase;
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it is
not Bank's lowest rate.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, President,
Chief Financial Officer, Assistant Treasurer, and Controller of Borrower.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to Borrower's
debt to Bank (pursuant to a subordination agreement entered into between the
Bank, the Borrower and the subordinated creditor), on terms acceptable to Bank.
"SUBSIDIARY" is for any Person, joint venture, or any other business entity
of which more than 50% of the voting stock or other equity interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the date first above written.
BORROWER:
MOLDFLOW CORPORATION
By /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President and CFO
-------------------------------------
BANK:
SILICON VALLEY BANK, D/B/A
SILICON VALLEY EAST
By /s/ XXXX XXXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxxx
------------------------------------
Title: Vice President
--------------------------------------
SILICON VALLEY BANK
By /s/ XXXXXXXX XXXXXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
---------------------------------------
Title: Loan Collateral Auditor
------------------------------------------
(Signed in Santa Xxxxx County, California)
