AMENDMENT TO FORBEARANCE AGREEMENT
THIS AMENDMENT TO FORBEARANCE AGREEMENT (this "AGREEMENT") is made this
17th day of January, 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 (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 January 16, 2003:
(a) Revolving Loans:
Principal: $1,479,291.15
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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 11 (ii) of the Forbearance Agreement is hereby
amended by deleting the text "January 15, 2003" set forth
therein and substituting the text "January 25, 2003 therefor.
(ii) Section 12 (a) of the Forbearance Agreement is hereby amended
by deleting same in its entirety and substituting the text
"January 25, 2003" therefor.
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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.
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.
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IN WITNESS WHEREOF, this Agreement has been executed as of the 17th day
of January, 2003.
"BORROWER"
SATCON TECHNOLOGY CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Vice President and Chief Financial Officer
SATCON POWER SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Vice President and Chief Financial Officer
SATCON APPLIED TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Vice President and Chief Financial Officer
SATCON ELECTRONICS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Vice President and Chief Financial Officer
SATCON POWER SYSTEMS CANADA LTD
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Vice President and Chief Financial Officer
"LENDER"
SILICON VALLEY BANK
By: /s/ Xxxx X. Xxxx
--------------------
Title: Vice President
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