Exhibit 10.1
THIRD LOAN MODIFICATION AGREEMENT
This Third Loan Modification Agreement (this "Loan Modification
Agreement') is entered into as of November 9, 2005, by and 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 Xxxxxx Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Bank") and VOXWARE, INC., a Delaware corporation,
with its chief executive office located at 000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxxxxxxxxxx, Xxx Xxxxxx 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 December 29, 2003,
evidenced by, among other documents, a certain Loan and Security Agreement dated
as of December 29, 2003, between Borrower and Bank, as amended by a certain
First Loan Modification Agreement dated as of May 28, 2004, by and between
Borrower and Bank, and as further amended by a certain Second Loan Modification
Agreement dated as of December 8, 2004, by and between Borrower and Bank (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 inserting the
following new provision entitled "Equipment Advances" to
appear as Section 2.1.3 thereof:
"2.1.3 EQUIPMENT ADVANCES.
(a) AVAILABILITY. Subject to the terms and
conditions of this Agreement, during the Draw Period,
Bank shall make advances (each, an "Equipment Advance"
and, collectively, "Equipment Advances") not exceeding
the Equipment Line. Equipment Advances may only be used
to finance Eligible Equipment purchased within ninety
(90) days (determined based upon the applicable invoice
date of such Eligible Equipment) before the date of each
Equipment Advance, and no Equipment Advance may exceed
100% of the total invoice for Eligible Equipment,
excluding taxes, shipping, warranty charges, freight
discounts and installation expenses relating to such
Eligible Equipment. Notwithstanding the foregoing, the
initial Equipment Advance hereunder (the "Initial
Equipment Advance") may be used to reimburse Borrower
for Eligible Equipment purchased on or after April 1,
2005, provided that: (i) the Initial Equipment Advance
is requested on the Closing Date, and (ii) the Initial
Equipment Advance shall be in amount equal to at least
One Hundred Thousand Dollars ($100,000.00). Unless
otherwise agreed to by Bank, not more than 25% of the
proceeds of the Equipment Line shall be used to finance
Other Equipment. After repayment, no Equipment Advance
may be reborrowed.
(b) INTEREST PAYMENTS. Commencing on the
first Payment Date of the month following the month in
which the Funding Date occurs (or commencing on the
Funding Date if the Funding Date is the first calendar
day of the month), Borrower shall make monthly payments
of interest at the rate set forth in Section 2.1.3(d).
(c) REPAYMENT. Commencing on May 9, 2006
(the "Amortization Date"), and continuing on the Payment
Date of each month thereafter, for the aggregate
outstanding Equipment Advances, Borrower shall make: (i)
thirty (30) equal monthly installments of principal,
calculated by the Bank, based upon (A) the amount of the
aggregate Equipment Advances, and (2) an amortization
schedule equal to thirty (30) months, plus (ii) interest
on the outstanding principal amount of the Equipment
Advances at the rate set forth in Section 2.1.3(d),
below (individually, the "Scheduled Payment", and
collectively, "Scheduled Payments"). All unpaid
principal and accrued interest is due and payable in
full on the Maturity Date. Payment 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.
(d) INTEREST RATE. Borrower shall pay
interest on each Payment Date on the unpaid principal
amount of each Equipment Advance until such Equipment
Advance has been paid in full. Interest shall accrue at
the floating per annum rate of interest equal to the
aggregate of the Prime Rate and one and three-quarters
of one percent (1.75%) per annum. Notwithstanding the
foregoing, on the Amortization Date, at the election of
the Borrower, interest may accrue at the fixed per annum
rate of interest equal to the aggregate of the Prime
Rate and one and three-quarters of one percent (1.75%)
per annum, determined by the Bank as of the Amortization
Date. Interest is computed on the basis of a 360 day
year for the actual number of days elapsed.
(e) BORROWING PROCEDURE. To obtain an
Equipment Advance, Borrower must notify Bank (which
notice shall be irrevocable) by facsimile no later than
3:00 p.m. Eastern time one (1) Business Day before the
day on which the Equipment Advance is to be made. The
Borrower shall include with such notice a
Payment/Advance Form signed by a Responsible Officer or
designee and include a copy of the invoice for the
Equipment being financed."
2. The Loan Agreement shall be amended such that the
provision entitled "Undisbursed Credit Extensions" shall
be renumbered to appear as Section 2.1.4.
3. The Loan Agreement shall be amended by inserting the
following language to appear at the end of the first
paragraph in Section 4.1 thereof:
"Notwithstanding the foregoing, the Obligations relating
solely to the Equipment Advances shall be secured only
by the 2005 Collateral."
4. The Loan Agreement shall be amended by inserting the
following new provision "Financial Covenants" to appear
as Section 6.11 thereof:
"6.11 FINANCIAL COVENANTS.
Borrower shall maintain, at all times, to be
tested as of the last day of each month, unless
otherwise noted:
(a) ADJUSTED QUICK RATIO. To be tested as of
the last day of each month, beginning with the month
ending November 30, 2005, Borrower shall maintain an
Adjusted Quick Ratio of at least 1.5 to 1.0.
(b) MINIMUM TANGIBLE NET WORTH. Borrower
shall maintain a minimum Tangible Net Worth of: (i) (a)
Three Million Two Hundred Seventy-Five Thousand Dollars
($3,275,000.00) as of the last day of each month which
is not the final month in a quarter, and (b) Three
Million Seven Hundred Fifty Thousand Dollars
($3,750,000.00) on the last day of each quarter, plus
(ii) beginning on June 30, 2006, and on an annual basis
thereafter, an amount equal to fifty percent (50.0%) of
Borrower's Net Income for the prior year, for any
applicable period, determined in accordance with GAAP."
5. The Loan Agreement shall be amended by inserting the
following text to appear at the end of Section 7.1
thereof:
"Borrower shall not enter into an agreement with
any Person other than Bank which restricts the
subsequent granting of a security interest in the
Intellectual Property."
6. The Loan Agreement shall be amended by deleting
subsection (c) of "Permitted Liens" appearing in Section
13.1 thereof, in its entirety and inserting in lieu
thereof the following:
"(c) Purchase money Liens in an amount not to
exceed Five Hundred Thousand Dollars ($500,000.00), in
the aggregate during any fiscal year: (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;"
7. The Loan Agreement shall be amended by restating the
definition of "Collateral" appearing in Section 13.1 as
follows:
""Collateral" shall mean the 2003 Collateral or the 2005
Collateral, as applicable.
8. The Loan Agreement shall be amended by deleting the
definition of "Credit Extensions" appearing in Section
13.1 thereof in its entirety, and inserting in lieu
thereof the following:
""Credit Extensions" " is any Advance, Equipment
Advance, Term Loan, or any other extension of credit by
Bank for Borrower's benefit."
9. The Loan Agreement shall be amended by inserting the
following provision to appear as subsection (v) in the
definition of "Material Adverse Change" as set forth in
Section 13.1:
"(v) Bank determines based upon information
available to it and in its reasonable judgment that
there is a reasonable likelihood that Borrower shall
fail to comply with one or more of the financial
covenants in Section 6 during the next succeeding
financial reporting period."
10. The Loan Agreement shall be amended by inserting the
following definitions to appear alphabetically in
Section 13.1 thereof:
""ADJUSTED QUICK RATIO" is a ratio of Quick Assets to
Quick Liabilities."
""BOARD" is the Borrower's Board of Directors."
""2003 COLLATERAL" is any and all properties, rights and
assets of Borrower described on EXHIBIT A."
""2005 COLLATERAL" is any and all properties, rights and
assets of Borrower described on EXHIBIT A-1."
""CURRENT LIABILITIES" are all obligations and
liabilities of Borrower to Bank, plus, without
duplication, the aggregate amount of Borrower's Total
Liabilities that mature within one (1) year."
""DEFERRED REVENUE" is all amounts received or invoiced
in advance of performance under contracts and not yet
recognized as revenue."
""DRAW PERIOD" shall mean May 9, 2006 (the date which is
six (6) months from the date of this Third Loan
Modification Agreement)."
""ELIGIBLE EQUIPMENT" is (a) general purpose computer
equipment, office equipment, test and laboratory
equipment, furnishings, subject to the limitations set
forth herein, and (b) Other Equipment that complies with
all of Borrower's representations and warranties to Bank
and which is acceptable to Bank in all respects and in
which Bank has a first priority Lien."
""EQUIPMENT ADVANCE" or "EQUIPMENT ADVANCES" is defined
in Section 2.1.3."
""EQUIPMENT LINE" is an Equipment Advance or Equipment
Advances in an aggregate amount of up to One Million
Dollars ($1,000,000.00) outstanding at any one time."
""FUNDING DATE" is any date on which a Credit Extension
is made to or on account of Borrower which shall be a
Business Day."
""MATURITY DATE" is October 9, 2008 (date which is 30
months from the Draw Period), or if earlier, the date of
prepayment or the date of acceleration of the Advance by
Agent following an Event of Default."
""OTHER EQUIPMENT" is leasehold improvements, intangible
property such as computer software and software
licenses, equipment specifically designed or
manufactured for Borrower, other intangible property,
limited use property and other similar property and soft
costs approved by Bank, including taxes, shipping,
warranty charges, freight discounts and installation
expenses."
""QUICK ASSETS" is, on any date, Borrower's unrestricted
cash, plus billed accounts receivable."
""QUICK LIABILITIES" are Current Liabilities, less the
current portion of: (i) Subordinated Debt, (ii) Deferred
Revenue, and (iii) accrued bonuses due to employees."
""SCHEDULED PAYMENT" or "Scheduled Payments" is defined
in Section 2.1.3(c).
"" TANGIBLE NET WORTH" is, on any date, the consolidated
total assets of Borrower and its Subsidiaries MINUS (a)
any amounts attributable to (i) goodwill, (ii)
intangible items including unamortized debt discount and
expense, patents, trade and service marks and names,
copyrights and research and development expenses except
prepaid expenses, (iii) notes, accounts receivable and
other obligations owing to Borrower from its officers or
other Affiliates, and (iv) reserves not already deducted
from assets, MINUS (b) Total Liabilities, PLUS (c)
Subordinated Debt."
""TOTAL LIABILITIES" is on any day, obligations that
should, under GAAP, be classified as liabilities on
Borrower's consolidated balance sheet, including all
Indebtedness, and
current portion of Subordinated Debt permitted by Bank
to be paid by Borrower, but excluding all other
Subordinated Debt."
11. The Compliance Certificate appearing as EXHIBIT C to the
Loan Agreement is hereby replaced with the Compliance
Certificate attached as EXHIBIT A hereto.
12. The Loan Agreement shall be amended by inserting EXHIBIT
A-1, attached as EXHIBIT B hereto.
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. The Borrower shall also
reimburse Bank for all reasonable legal fees and expenses incurred in connection
with this amendment to the Existing Loan Documents.
5. GOOD FAITH DEPOSIT. Borrower has paid to Bank a Good Faith Deposit of
Five Thousand Dollars ($5,000.00) (the "Good Faith Deposit") to initiate Bank's
due diligence review process. Any portion of the Good Faith Deposit not utilized
to pay Bank Expenses, shall be applied towards the modification fee (as set
forth in Paragraph 4 above).
6. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower
hereby ratifies, confirms and reaffirms, all and singular, the terms and
conditions of a certain Intellectual Property Security Agreement dated as of
December 29, 2003, between Borrower and Bank, and acknowledges, confirms and
agrees that said Intellectual Property Security Agreement contains an accurate
and complete listing, in all material respects, of all Intellectual Property
Collateral as defined in said Intellectual Property Security Agreement, and
shall remain in full force and effect.
7. 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 December 29, 2003, between Borrower
and Bank, and acknowledges, confirms and agrees the disclosures and information
above Borrower provided to Bank in the Perfection Certificate has not changed in
any material respect, as of the date hereof.
8. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
9. 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.
10. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that
Borrower has no offsets, defenses, claims, or counterclaims against Bank with
respect to the Obligations, or otherwise, and that if Borrower now has, or ever
did have, any offsets, defenses, claims, or counterclaims against Bank, whether
known or unknown, at law or in equity, all of them are hereby expressly WAIVED
and Borrower hereby RELEASES Bank from any liability thereunder.
11. 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.
12. COUNTERSIGNATURE. This Loan Modification Agreement shall become
effective only when it shall have been executed by Borrower and Bank.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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:
VOXWARE, INC. SILICON VALLEY BANK
By: /s/ Xxxx Commons By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx Commons Name: Xxxxxx X. Xxxxxx
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Title: Vice President & CFO Title: Relationship Manager
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The undersigned, VERBEX ACQUISITION CORPORATION, a Delaware corporation
("Guarantor") hereby: (i) ratifies, confirms and reaffirms, all and singular,
the terms and conditions of (A) a certain Unlimited Guaranty of the obligations
of Borrower to Bank dated January 27, 2004 (the "Guaranty"), (B) a certain
Security Agreement by Guarantor in favor of Bank dated January 27, 2004 (the
"Security Agreement");(ii) 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; and (iii) acknowledges, confirms and agrees that the obligations of
Borrower to Bank under the Guaranty include, without limitation, all Obligations
of Borrower to Bank under the Loan Agreement, as amended by this Loan
Modification Agreement.
VERBEX ACQUISITION CORPORATION
/s/ Xxxx Commons
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EXHIBIT A
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM: VOXWARE, INC.
The undersigned authorized officer of Voxware, Inc., certifies that
under the terms and conditions of the Loan and Security Agreement between
Borrower and Bank (the "Agreement"), (i) Borrower is in complete compliance for
the period ending _______________ with all required covenants except as noted
below and (ii) all representations and warranties in the Agreement are true and
correct in all material respects on this date. Attached are the required
documents supporting the certification. The Officer certifies that these are
prepared in accordance with Generally Accepted Accounting Principles (GAAP)
consistently applied from one period to the next except as explained in an
accompanying letter or footnotes. The Officer acknowledges that no borrowings
may be requested at any time or date of determination that Borrower is not in
compliance with any of the terms of the Agreement, and that compliance is
determined not just at the date this certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES"
COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
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Interim financial statements with CC Monthly within 30 days Yes No
Annual (CPA Audited) FYE within 120 days Yes No
Board Minutes Monthly and as requested by Bank Yes No
The following Intellectual Property was registered after the Closing Date (if blank, read "None")
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FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
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Maintain on a Monthly Basis:
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Minimum Adjusted Quick Ratio 1.5:1.0 _____:1.0 Yes No
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Maintain on a Intra-Quarterly and Quarterly Basis
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Minimum Tangible Net Worth $_______* $_______ Yes No
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*As set forth in Section 6.11(b)
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COMMENTS REGARDING EXCEPTIONS: See Attached. BANK USE ONLY
Received by:
--------------------------------
Sincerely, AUTHORIZED SIGNER
Date:
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SIGNATURE
Verified:
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TITLE AUTHORIZED SIGNER
Date:
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DATE
Compliance Status: Yes No
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EXHIBIT B
EXHIBIT A-1
The Collateral consists of all of Borrower's right, title and interest in and to
the following personal property:
All goods, Accounts (including health-care receivables), Equipment,
Inventory, contract rights or rights to payment of money, leases, license
agreements, franchise agreements, General Intangibles (except as provided
below), commercial tort claims, documents, instruments (including any promissory
notes), chattel paper (whether tangible or electronic), cash, deposit accounts,
all certificates of deposit, fixtures, letters of credit rights (whether or not
the letter of credit is evidenced by a writing), securities, and all other
investment property, supporting obligations, and financial assets, whether now
owned or hereafter acquired, wherever located; and
all Borrower's Books relating to the foregoing, and any and all claims,
rights and interests in any of the above and all substitutions for, additions,
attachments, accessories, accessions and improvements to and replacements,
products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include any of
the following, whether now owned or hereafter acquired: any copyright rights,
copyright applications, copyright registrations and like protections in each
work of authorship and derivative work, whether published or unpublished, any
patents, patent applications and like protections, including improvements,
divisions, continuations, renewals, reissues, extensions, and
continuations-in-part of the same, trademarks, service marks and, to the extent
permitted under applicable law, any applications therefor, whether registered or
not, and the goodwill of the business of Borrower connected with and symbolized
thereby, know-how, operating manuals, trade secret rights, rights to unpatented
inventions, and any claims for damage by way of any past, present, or future
infringement of any of the foregoing; provided, however, the Collateral shall
include all Accounts, license and royalty fees and other revenues, proceeds, or
income arising out of or relating to any of the foregoing.
