Exhibit 10.1
SECOND AMENDMENT TO FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT TO FORBEARANCE AGREEMENT (this "AGREEMENT") is
made this 11th day of February, 2003 by and among:
SILICON VALLEY BANK (the "LENDER"), a bank organized under the laws of
the State of California with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx and with a loan production office
located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx
doing business under the name "Silicon Valley East";
SATCON TECHNOLOGY CORPORATION, SATCON POWER SYSTEMS, INC., SATCON
APPLIED TECHNOLOGY, INC., SATCON ELECTRONICS, INC., AND SATCON POWER
SYSTEMS CANADA LTD. (individually and collectively, jointly and
severally, the "BORROWER"), Delaware corporations (other than SatCon
Power Systems Canada Ltd. which is organized under the laws of the
Province of Ontario, Canada) with offices located at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx;
BACKGROUND
Reference is made to the loan arrangement maintained between the Lender
and the Borrower, evidenced by, among other things, a certain Loan and Security
Agreement dated as of September 13, 2002 (the "LOAN AGREEMENT"), as affected by
a certain Forbearance Agreement entered into by the Lender and the Borrower
dated as of December 19, 2002, as amended on January 17, 2003 (as amended, the
"FORBEARANCE AGREEMENT"). Hereinafter, the Loan Agreement, the Forbearance
Agreement and all documents, instruments, and agreements incidental thereto
shall be referred to collectively as the "LOAN DOCUMENTS". Capitalized terms
used in this Agreement and not otherwise defined herein shall have the meanings
as defined in the Forbearance Agreement.
The Borrower has requested that the Lender revise certain terms of the
Forbearance Agreement relating to Termination Events and Lender has agreed, but
only upon the terms and conditions set forth herein.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and between
the Lender and the Borrower, as follows:
ACKNOWLEDGMENT OF INDEBTEDNESS
1. The Borrower hereby acknowledges and agrees that it is
unconditionally liable to the Lender for the following amounts
in accordance with the terms of the Loan Documents and this
Agreement, as of February 11, 2003:
(a) Revolving Loans:
Principal: $196,991.49
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(b) For any additional principal advances and all
interest heretofore or hereafter accruing, and all
fees, penalties, costs, expenses, and costs of
collection (including attorneys' fees and expenses)
heretofore or hereafter incurred by the Lender in
connection with the Loan Documents.
(c) Hereinafter all amounts due as set forth in this
Paragraph 1 and all other amounts payable pursuant to
the terms of the Loan Documents, shall be referred to
collectively as the "OBLIGATIONS".
WAIVER OF CLAIMS
2. The Borrower hereby acknowledges and agrees that it has no
offsets, defenses, claims, or counterclaims against the
Lender, or its officers, directors, employees, attorneys,
representatives, parent, affiliates, predecessors, successors,
or assigns with respect to the Loan Documents, the
Obligations, or otherwise, and that if the Borrower now has,
or ever did have, any offsets, defenses, claims, or
counterclaims against the Lender, or its officers, directors,
employees, attorneys, representatives, parent, affiliates,
predecessors, successors, or assigns, whether known or
unknown, at law or in equity, from the beginning of the world
through this date and through the time of execution of this
Agreement, all of them are hereby expressly WAIVED, and the
Borrower hereby RELEASES the Lender, and its officers,
directors, employees, attorneys, representatives, parent,
affiliates, predecessors, successors, and assigns from any
liability therefor.
RATIFICATION OF LOAN DOCUMENTS
3. The Borrower hereby ratifies, confirms, and reaffirms all and
singular the terms and conditions of the Loan Documents. The
Borrower further acknowledges and agrees that, except as
specifically modified in this Agreement, all terms and
conditions of the Loan Documents shall remain in full force
and effect including, without limitation, the requirement of
the payment of the Additional Fees set forth in Section 11 of
the Forbearance Agreement.
AMENDMENTS TO FORBEARANCE AGREEMENT
4. The Forbearance Agreement is hereby amended as follows:
(i) Section 5 of the Forbearance Agreement is hereby
amended by deleting same in its entirety and
replacing it with the following:
"The Borrower acknowledges and agrees that during the
term of this Forbearance Agreement, the Lender shall
have no obligation to make any further Loans or other
advances to the Borrower. Notwithstanding the
foregoing, the Lender shall, on or about February 11,
2003, provide a Loan to the Borrower in the amount of
$245,000.00. The making of such Loan shall not
constitute a waiver of any Event of Default, whether
now existing or hereafter arising, nor shall the
making of such Loan obligate the Lender to make any
future Loans or advances to the Borrower."
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(ii) Section 11 (ii) of the Forbearance Agreement is
hereby amended by deleting the text "January 25,
2003" set forth therein the first time it appears and
substituting the text "February 15, 2003" therefor.
(iii) Section 11(ii) of the Forbearance Agreement is
hereby further amended to provide for the Additional
Fees in the amount of $10,000.00 currently payable on
Monday of each week to be paid on Thursday of each
week from and after the date hereof.
(iv) Section 12 (a) of the Forbearance Agreement is
hereby amended by deleting same in its entirety and
substituting the text "February 15, 2003" therefor.
ENTIRE AGREEMENT
5. This Agreement shall be binding upon the Borrower and the
Borrower's respective employees, representatives, successors,
and assigns, and shall inure to the benefit of the parties and
their successors and assigns. This Agreement and all
documents, instruments, and agreements executed in connection
herewith incorporate all of the discussions and negotiations
between the Borrower and the Lender, either expressed or
implied, concerning the matters included herein and in such
other documents, instruments and agreements, any statute,
custom, or usage to the contrary notwithstanding.
CONSTRUCTION OF AGREEMENT
6. In connection with the interpretation of this Agreement and
all other documents, instruments, and agreements incidental
hereto:
(a) All rights and obligations hereunder and thereunder,
including matters of construction, validity, and
performance, shall be governed by and construed in
accordance with the law of the Commonwealth of
Massachusetts and are intended to take effect as
sealed instruments.
(b) In the event of any inconsistency between the
provisions of this Agreement and any other document,
instrument, or agreement entered into by and between
the Lender and the Borrower, the provisions of this
Agreement shall govern and control.
ILLEGALITY OR UNENFORCEABILITY
7. Any determination that any provision or application of this
Agreement is invalid, illegal, or unenforceable in any
respect, or in any instance, shall not affect the validity,
legality, or enforceability of any such provision in any other
instance, or the validity, legality, or enforceability of any
other provision of this Agreement.
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INFORMED EXECUTION
8. The Borrower warrants and represents to the Lender that the
Borrower has read and understands all of the terms and
conditions of this Agreement, intends to be bound by the terms
and conditions of this Agreement, and is executing this
Agreement freely and voluntarily, without duress, after
consultation with independent counsel of its own selection.
IN WITNESS WHEREOF, this Agreement has been executed as of the 11th day
of February, 2003.
"BORROWER"
SATCON TECHNOLOGY CORPORATION
By: /s/ XXXXX X. XXXXXXX
----------------------------
Title: VP & CFO
SATCON POWER SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------
Title: VP & CFO
SATCON APPLIED TECHNOLOGY, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------
Title: VP & CFO
SATCON ELECTRONICS, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------
Title: VP & CFO
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SATCON POWER SYSTEMS CANADA
LTD
By: /s/ XXXXX X. XXXXXXX
---------------------------
Title: VP & CFO
"LENDER"
SILICON VALLEY BANK
By: /s/ XXXX X. XXXX
--------------------------
Title: VICE PRESIDENT
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