FIRST LOAN MODIFICATION AGREEMENT
Exhibit
10.33
This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as
of March 29, 2011, by and between (i) SILICON VALLEY BANK, a California corporation with a loan
production office located at 000 Xxxxx Xxxxxx, Xxxxx 0-000, Xxxxxx, Xxxxxxxxxxxxx 00000 (“Bank”),
and (ii) NXSTAGE MEDICAL, INC., a Delaware corporation (“NxStage”), EIR MEDICAL, INC., a
Massachusetts corporation (“EIR”), MEDISYSTEMS CORPORATION, a Washington corporation
(“Medisystems”), each with offices located at 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx 00000, and MEDISYSTEMS SERVICES CORPORATION, a Nevada corporation,
(“Services”), with offices located at 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000 (NxStage, EIR, Medisystems and Services are individually and collectively, jointly and
severally, the “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 March 10, 2010, evidenced by, among other documents, a certain Loan and
Security Agreement dated as of March 10, 2010, 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 and in certain Intellectual Property Security Agreements, each
dated as of March 10, 2010 executed by each Borrower in favor of Bank (collectively, the “IP
Agreements”, and 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 as Section 2.3(a)(i) thereof: |
“(i) Advances. Subject to Section 2.3(b), the principal amount
outstanding under the Revolving Line shall accrue interest at floating per
annum rate equal to two percentage points (2.00%) above the Prime Rate,
which interest shall be payable monthly, in arrears, in accordance with
Section 2.3(f) below.”
and inserting in lieu thereof the following:
“(i) Advances. Subject to Section 2.3(b), effective as of January
1, 2011 and thereafter, the principal amount outstanding under the Revolving
Line shall accrue interest at floating per annum rate equal to one-half of
one percentage point (0.50%) above the Prime Rate, which interest shall be
payable monthly, in arrears, in accordance with Section 2.3(f) below.”
| 2 | The Loan Agreement shall be amended by deleting the following text appearing as Section 2.4(d) thereof: |
“(d) Unused Revolving Line Facility Fee. A fee (the “Unused
Revolving Line Facility Fee”), payable monthly, in arrears, on a calendar
year basis, in an amount equal to one-half of one percent (0.50%) per annum
of the average unused portion of the Revolving Line, as determined by Bank.
The unused portion of the Revolving Line, for the purposes of this
calculation, shall not include amounts reserved for products provided in
connection with Cash Management Services, FX Forward Contracts or Letters of
Credit. Borrower shall not be entitled to any credit, rebate or repayment
of any Unused Revolving Line Facility Fee previously earned by Bank pursuant
to this Section
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notwithstanding any termination of the Agreement or the suspension or
termination of Bank’s obligation to make loans and advances hereunder,
including during any Streamline Period; and”
and inserting in lieu thereof the following:
“(d) Unused Revolving Line Facility Fee. A fee (the “Unused
Revolving Line Facility Fee”), payable monthly, in arrears, commencing with
the monthly period ended January 1, 2011, and each monthly period ending
thereafter, on a calendar year basis, in an amount equal to one-quarter of
one percent (0.25%) per annum of the average unused portion of the Revolving
Line, as determined by Bank. The unused portion of the Revolving Line, for
the purposes of this calculation, shall not include amounts reserved for
products provided in connection with Cash Management Services, FX Forward
Contracts or Letters of Credit. Borrower shall not be entitled to any
credit, rebate or repayment of any Unused Revolving Line Facility Fee
previously earned by Bank pursuant to this Section notwithstanding any
termination of the Agreement or the suspension or termination of Bank’s
obligation to make loans and advances hereunder, including during any
Streamline Period; and”
| 3 | The Loan Agreement shall be amended by deleting the following text appearing as Section 6.2(a)(iii) thereof: |
“(iii) as soon as available, and in any event within thirty (30) days after
the end of each month, monthly unaudited consolidated and consolidating
financial statements;”
and inserting in lieu thereof the following:
“(iii) for any month in which, as of any date of measurement in such month,
Borrower’s unrestricted cash at Bank plus the unused Availability
Amount (as determined by Bank with reference to the most recent Borrowing
Base Certificate of Borrower) is less than or equal to $20,000,000, then as
soon as available, and in any event within thirty (30) days after the end of
each such month, monthly unaudited consolidated and consolidating financial
statements;”
| 4 | The Loan Agreement shall be amended by deleting the following text from Section 10 thereof: |
| “If to Bank: | Silicon Valley Bank | |||||
| One Xxxxxx Executive Park, | ||||||
| Suite 200 | ||||||
| 0000 Xxxxxxxxxx Xxxxxx | ||||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||||
| Attn: Xx. Xxxx Xxxxxxxxxxx | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: xxxxxxxxxxxx@xxx.xxx” | ||||||
| and inserting in lieu thereof the following: | ||||||
| “If to Bank: | Silicon Valley Bank | |||||
| 000 Xxxxx Xxxxxx, Xxxxx 0-000 | ||||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||||
| Attn: Mr. Xxxxxxx Xxxxx | ||||||
| Fax: (000) 000-0000 | ||||||
| Email: xxxxxx@xxx.xxx” | ||||||
4. FEES. Borrower shall pay to Bank the “Anniversary Fee” described in Section 2.4 of the
Loan Agreement, as and when due and payable in accordance therewith. Borrower shall also reimburse
Bank for all legal fees and expenses incurred in connection with this amendment to the Existing
Loan Documents.
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5. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary
to reflect the changes described above.
6. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and reaffirms all
terms and conditions of the Loan Agreement (as modified hereby), each other Existing Loan Document
and all security or other collateral granted to the Bank, and confirms that the indebtedness
secured thereby includes, without limitation, 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.
7. JURISDICTION/VENUE. Section 11 of the Loan Agreement is hereby incorporated by
reference in its entirety.
8. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it
shall have been executed by Borrower and Bank.
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IN WITNESS WHEREOF, the parties hereto have caused this Loan Modification Agreement to be
executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date
first above written.
BORROWER:
| NXSTAGE MEDICAL, INC. | EIR MEDICAL, INC. | |||||||||||||
By |
/s/ Xxxxxx X. Xxxxx | By | /s/ Xxxxxx X. Xxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxx | Name: | Xxxxxx X. Xxxxx | |||||||||||
| Title: | Treasurer, SVP & CFO | Title: | Treasurer | |||||||||||
| MEDISYSTEMS CORPORATION | MEDISYSTEMS SERVICES CORPORATION | |||||||||||||
By |
/s/ Xxxxxx X. Xxxxx | By | /s/ Xxxxxx X. Xxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxx | Name: | Xxxxxx X. Xxxxx | |||||||||||
| Title: | Treasurer | Title: | Treasurer | |||||||||||
| BANK: | ||||||||||||||
| SILICON VALLEY BANK | ||||||||||||||
By |
/s/ Xxxxxxx Xxxxx | |||||||||||||
| Name: | Xxxxxxx Xxxxx | |||||||||||||
| Title: | VP | |||||||||||||
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