FIFTH LOAN MODIFICATION AGREEMENT
EXHIBIT
10.7
This Fifth Loan Modification Agreement
(this “Loan Modification Agreement”) is entered into as of July 12, 2010, by and
among (a) SILICON VALLEY
BANK, a California corporation, 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 (b) (i) GLOBALOPTIONS, INC., a
Delaware corporation with offices at 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 (“Global”), and (ii) THE BODE TECHNOLOGY GROUP,
INC., a Delaware corporation with offices at 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 (“Bode”) (Global and Bode are jointly and
severally, individually and collectively, referred to herein as 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 31, 2008, evidenced by, among
other documents, a certain Fourth Amended and Restated Loan and Security
Agreement dated as of March 31, 2008, among Borrower and Bank, as amended by a
certain First Loan Modification Agreement dated as of March 30, 2009, as further
amended by a certain Second Loan Modification Agreement dated as of August 27,
2009, as further amended by a certain Third Loan Modification Agreement dated as
of December 31, 2009, and as further amended by a certain Fourth Loan
Modification Agreement dated as of April 15, 2010 (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 (a) the
Collateral as described in the Loan Agreement, (b) the Intellectual Property
Collateral as described in a certain Intellectual Property Security Agreement
dated as of March 31, 2008 between Bank and Global (the “Global IP Security
Agreement”), and (c) the Intellectual Property Collateral as described in a
certain Intellectual Property Security Agreement dated as of March 31, 2008
between Bank and Bode (the “Bode IP Security 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.
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A.
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Modifications
to Loan Agreement.
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1
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Borrower
hereby acknowledges, confirms and agrees that, upon and after the
occurrence of the Sale Event, no further Advances based upon Aggregate
Eligible Accounts may be requested by Borrower and that Bank has no
obligation to make any Advances based upon Aggregate Eligible Accounts as
of such date. In addition, the outstanding principal amount of
the Advances made based upon Aggregate Eligible Accounts must be repaid in
full or, at the sole and absolute discretion of Bank, refinanced as
Advances based upon Eligible Accounts, and all other Obligations with
respect to Advances made based upon Aggregate Eligible Accounts
(including, without limitation, all Finance Charges, Collateral Handling
Fees, and other fees or amounts due in connection with the Advances made
based upon Aggregate Eligible Accounts) shall be immediately paid in
full.
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2
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The
Loan Agreement shall be amended by deleting the following text, appearing
in Section 2.1.1(a) thereof:
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“
(ii)
Subject to the terms of this Agreement,
Borrower may request that Bank finance Eligible Accounts on an aggregate
basis. Bank may, in its sole discretion in each instance, finance
Eligible Accounts on an aggregate basis by extending credit to Borrower in an
amount equal to the result of the Advance Rate multiplied by the aggregate face
amount of a summary listing of Eligible Accounts provided to Bank for one
Account Debtor (the “Aggregate Eligible Accounts”). Bank may, in its
sole discretion, change the percentage of the Advance Rate for the Aggregate
Eligible Accounts on a case by case basis.
(iii) Any
extension of credit made pursuant to the terms of subsection (i) or (ii) above
shall hereinafter be referred to as an “Advance”. When Bank makes an
Advance, the Eligible Account or the Aggregate Eligible Accounts each become a
separate “Financed Receivable”.
and
inserting in lieu thereof the following:
“
(ii) Subject
to the terms of this Agreement and prior to the occurrence of the Sale Event,
Borrower may request that Bank finance Eligible Accounts on an aggregate
basis. Bank may, in its sole discretion in each instance, finance
Eligible Accounts on an aggregate basis by extending credit to Borrower in an
amount equal to the result of the Advance Rate multiplied by the aggregate face
amount of a summary listing of Eligible Accounts provided to Bank for one
Account Debtor (the “Aggregate Eligible Accounts”). Bank may, in its
sole discretion, change the percentage of the Advance Rate for the Aggregate
Eligible Accounts on a case by case basis.
(iii) Any
extension of credit made pursuant to the terms of subsection (i) or, prior to
the occurrence of the Sale Event, subsection (ii), above shall hereinafter be
referred to as an “Advance”. When Bank makes an Advance, the Eligible
Account or, prior to the occurrence of the Sale Event, the Aggregate Eligible
Accounts, each become a separate “Financed Receivable”.”
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3
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The
Loan Agreement shall be amended by deleting the following language,
appearing in Section 2.1.1(b)
thereof:
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“In
addition and notwithstanding the foregoing, (i) the aggregate amount of Advances
outstanding at any time may not exceed Ten Million Dollars ($10,000,000.00), and
(ii) the aggregate amount of Advances made based upon Aggregate Eligible
Accounts outstanding at any time may not exceed Two Million Five Hundred
Thousand Dollars ($2,500,000.00).”
and inserting in lieu thereof the
following:
“In
addition and notwithstanding the foregoing, (i) prior to the occurrence of the
Sale Event, (A) the aggregate amount of Advances outstanding at any time may not
exceed Ten Million Dollars ($10,000,000.00), and (B) the aggregate amount of
Advances made based upon Aggregate Eligible Accounts outstanding at any time may
not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00), and (ii)
upon and after the occurrence of the Sale Event, the aggregate amount of
Advances outstanding at any time may not exceed Seven Million Five Hundred
Thousand Dollars ($7,500,000.00).”
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4
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The
Loan Agreement shall be amended by deleting the following text, appearing
in Section 2.1.1 thereof:
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“
(c) Borrowing
Procedure. Borrower will deliver an Advance Request and
Invoice Transmittal in the form attached hereto as Exhibit
C signed by a Responsible Officer for each Advance it requests,
accompanied by an accounts receivable aging with respect to Advances requested
to be made based upon Aggregate Eligible Accounts, or by invoices with respect
to Advances requested to be made based upon Eligible Accounts. Bank
may rely on information set forth in or provided with the Advance Request and
Invoice Transmittal.”
and
inserting in lieu thereof the following:
“
(c) Borrowing
Procedure.
(i) Prior
to the occurrence of the Sale Event, Borrower will deliver an Advance Request
and Invoice Transmittal in the form attached hereto as Exhibit
C signed by a Responsible Officer for each Advance it requests,
accompanied by an accounts receivable aging with respect to Advances requested
to be made based upon Aggregate Eligible Accounts, or by invoices with respect
to Advances requested to be made based upon Eligible Accounts. Bank
may rely on information set forth in or provided with the Advance Request and
Invoice Transmittal.
(ii) Upon
and after the occurrence of the Sale Event, Borrower will deliver an Invoice
Transmittal for each Eligible Account it offers. Bank may rely on
information set forth in or provided with the Invoice Transmittal.”
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5
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The
Loan Agreement shall be amended by deleting the following text, appearing
in Section 2.1.1(f):
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“If this
Agreement is terminated (A) by Bank in accordance with clause (ii) in the
foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay to
Bank a termination fee in an amount equal to Fifty Thousand Dollars ($50,000.00)
(the “Early Termination Fee”).”
and
inserting in lieu thereof the following:
“If this
Agreement is terminated (A) by Bank in accordance with clause (ii) in the
foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay to
Bank a termination fee in an amount equal to (1) prior to the occurrence of the
Sale Event, Fifty Thousand Dollars ($50,000.00), and (2) upon and after the
occurrence of the Sale Event, Thirty Seven Thousand Five Hundred Dollars
($37,500.00) (the “Early Termination Fee”).”
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6
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The
Loan Agreement shall be amended by deleting the following text, appearing
in Section 2.1.1 thereof:
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“
(h) Suspension of
Advances. Without limiting the fact that Bank has no
obligation to make Advances based upon Aggregate Eligible Accounts, Borrower’s
ability to request that Bank finance Eligible Accounts hereunder will terminate
if, in Bank’s sole discretion, there has been a material adverse change in the
general affairs, management, results of operation, condition (financial or
otherwise) or the prospect of repayment of the Obligations, 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.”
and
inserting in lieu thereof the following:
“
(h) Suspension of
Advances. Without limiting the fact that (i) Bank has no
obligation to make Advances based upon Aggregate Eligible Accounts prior to the
occurrence of the Sale Event, and (ii) Bank shall not make any Advances based
upon Aggregate Eligible Accounts upon and after the occurrence of the Sale
Event, Borrower’s ability to request that Bank finance Eligible Accounts
hereunder will terminate if, in Bank’s sole discretion, there has been a
material adverse change in the general affairs, management, results of
operation, condition (financial or otherwise) or the prospect of repayment of
the Obligations, 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.”
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7
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The
Loan Agreement shall be amended by deleting the following text, appearing
in Section 2.2.3 thereof:
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“Except
as otherwise provided in Section 2.3.1(b)(i), the Finance Charge is payable when
the Advance made based on such Financed Receivable is payable in accordance with
Section 2.3 hereof.”
and
inserting in lieu thereof the following:
“Except
as otherwise provided in Section 2.3.1(b)(i) prior to the occurrence of the Sale
Event, and at all times upon and after the occurrence of the Sale Event, the
Finance Charge is payable when the Advance made based on such Financed
Receivable is payable in accordance with Section 2.3 hereof.”
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8
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The
Loan Agreement shall be amended by deleting the following, appearing as
Section 2.2.4 thereof:
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“
2.2.4 Collateral
Handling Fee. Borrower will pay to Bank a collateral handling
fee equal to 0.20% (or, with respect to Financed Receivables based upon
Aggregate Eligible Accounts, 0.30%) per month of the Financed Receivable Balance
for each Financed Receivable outstanding based upon a 360 day year (the
“Collateral Handling Fee”), provided, however, for any Subject Month (as of the
first calendar day of such month) to the extent that Borrower maintained
Liquidity of greater than Twelve Million Five Hundred Thousand Dollars
($12,500,000.00) at all times during the applicable Testing Month, the
Collateral Handling Fee shall be 0.0% (or, with respect to Financed Receivables
based upon Aggregate Eligible Accounts, 0.10%) per month of the Financed
Receivable Balance for each Financed Receivable outstanding based upon a 360 day
year. This fee is charged on a daily basis which is equal to the
Collateral Handling Fee divided by 30, multiplied by the number of days each
such Financed Receivable is outstanding, multiplied by the outstanding Financed
Receivable Balance. Except as otherwise provided in Section
2.3.1(b)(i), the Collateral Handling Fee is payable when the Advance made based
on such Financed Receivable is payable in accordance with Section 2.3
hereof. In computing Collateral Handling Fees under this Agreement,
all Collections received by Bank shall be deemed applied by Bank on account of
Obligations three (3) Business Days after receipt of the
Collections. After an Event of Default, the Collateral Handling Fee
will increase an additional 0.50% effective immediately upon such Event of
Default; provided, however, as of the first day of the month following the month
in which the applicable Event of Default is cured (so long as at such time there
is no other Event of Default), the Collateral Handling Fee shall be reduced to
the applicable rate as set forth in the first sentence of this Section
2.2.4.”
and inserting in lieu thereof the
following:
“
2.2.4 Collateral
Handling Fee.
(a) Prior
to the occurrence of the Sale Event, Borrower will pay to Bank a collateral
handling fee equal to 0.20% (or, with respect to Financed Receivables based upon
Aggregate Eligible Accounts, 0.30%) per month of the Financed Receivable Balance
for each Financed Receivable outstanding based upon a 360 day year (the
“Collateral Handling Fee”), provided, however, for any Subject Month (as of the
first calendar day of such month) to the extent that Borrower maintained
Liquidity of greater than Twelve Million Five Hundred Thousand Dollars
($12,500,000.00) at all times during the applicable Testing Month, the
Collateral Handling Fee shall be 0.0% (or, with respect to Financed Receivables
based upon Aggregate Eligible Accounts, 0.10%) per month of the Financed
Receivable Balance for each Financed Receivable outstanding based upon a 360 day
year. This fee is charged on a daily basis which is equal to the
Collateral Handling Fee divided by 30, multiplied by the number of days each
such Financed Receivable is outstanding, multiplied by the outstanding Financed
Receivable Balance. Except as otherwise provided in Section
2.3.1(b)(i), the Collateral Handling Fee is payable when the Advance made based
on such Financed Receivable is payable in accordance with Section 2.3
hereof.
(b) Upon
and after the occurrence of the Sale Event, Borrower will pay to Bank a
collateral handling fee equal to 0.20% per month of the Financed Receivable
Balance for each Financed Receivable outstanding based upon a 360 day year (the
“Collateral Handling Fee”), provided, however, for any Subject Month (as of the
first calendar day of such month) to the extent that Borrower maintained
Liquidity of greater than Twelve Million Five Hundred Thousand Dollars
($12,500,000.00) at all times during the applicable Testing Month, the
Collateral Handling Fee shall be 0.0% per month of the Financed Receivable
Balance for each Financed Receivable outstanding based upon a 360 day
year. This fee is charged on a daily basis which is equal to the
Collateral Handling Fee divided by 30, multiplied by the number of days each
such Financed Receivable is outstanding, multiplied by the outstanding Financed
Receivable Balance. The Collateral Handling Fee is payable when the
Advance made based on such Financed Receivable is payable in accordance with
Section 2.3 hereof.
(c) In
computing Collateral Handling Fees under this Agreement, all Collections
received by Bank shall be deemed applied by Bank on account of Obligations three
(3) Business Days after receipt of the Collections. After an Event of
Default, the Collateral Handling Fee will increase an additional 0.50% effective
immediately upon such Event of Default; provided, however, as of the first day
of the month following the month in which the applicable Event of Default is
cured (so long as at such time there is no other Event of Default), the
Collateral Handling Fee shall be reduced to the applicable rate as set forth in
the first sentence of subsection (i) or, prior to the occurrence of the Sale
Event, subsection (ii) (as applicable) of this Section 2.2.4.”
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9
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The
Loan Agreement shall be amended by deleting the following text, appearing
in Section 2.3.1 thereof:
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“
(b) With
respect to Advances made based on Aggregate Eligible Accounts:
(i) Borrower
shall pay to Bank, on the first day of each Reconciliation Period, and
contemporaneously with payment in full of an Advance made based upon Aggregate
Eligible Accounts, all accrued Finance Charges and Collateral Handling Fees on
the Advances made based on the Aggregate Eligible Accounts;
(ii)
Borrower
shall also pay the principal amount of each Advance made based on Aggregate
Eligible Accounts on the earliest of: (A) the date the Financed Receivable (or
any portion thereof) is no longer an Eligible Account, or an Adjustment has been
made to any portion of the Aggregate Eligible Accounts, or any Account
comprising the Aggregate Eligible Accounts has been paid by the Account Debtor
(but in each case only up to the portion of Advances such that the aggregate
Financed Receivable Balance (net of any Accounts that are paid, not Eligible
Accounts, or subject to an Adjustment) is not less than 125% of the aggregate
Advances made thereon); (B) the date on which there is a breach of any warranty
or representation set forth in Section 5.3; or (C) the Maturity Date (including
any early termination); and
(iii) In
addition to the foregoing, Borrower hereby authorizes Bank to, at Bank’s
election in its sole discretion, refinance each outstanding Advance which is
made based upon Aggregate Eligible Accounts at any time, including, without
limitation, when a portion of the Advance is repaid or when Bank makes an
additional Advance pertaining to Aggregate Eligible Accounts in respect of the
same Account Debtor. Each such refinancing shall consist of the
creation of a new “placeholder note” on the books of Bank which evidences the
Financed Receivable Balance with respect to such Advance.”
and
inserting in lieu thereof the following:
“
(b) With
respect to Advances made based on Aggregate Eligible Accounts:
(i)
Prior to
the occurrence of the Sale Event, Borrower shall pay to Bank, on the first day
of each Reconciliation Period, and contemporaneously with payment in full of an
Advance made based upon Aggregate Eligible Accounts, all accrued Finance Charges
and Collateral Handling Fees on the Advances made based on the Aggregate
Eligible Accounts;
(ii) Borrower
shall also pay the principal amount of each Advance made based on Aggregate
Eligible Accounts on the earliest of: (A) the date the Financed Receivable (or
any portion thereof) is no longer an Eligible Account, or an Adjustment has been
made to any portion of the Aggregate Eligible Accounts, or any Account
comprising the Aggregate Eligible Accounts has been paid by the Account Debtor
(but in each case only up to the portion of Advances such that the aggregate
Financed Receivable Balance (net of any Accounts that are paid, not Eligible
Accounts, or subject to an Adjustment) is not less than 125% of the aggregate
Advances made thereon); (B) the date on which there is a breach of any warranty
or representation set forth in Section 5.3; (C) the occurrence of the Sale
Event; or (D) the Maturity Date (including any early termination);
and
(iii) In
addition to the foregoing, prior to the occurrence of the Sale Event, Borrower
hereby authorizes Bank to, at Bank’s election in its sole discretion, refinance
each outstanding Advance which is made based upon Aggregate Eligible Accounts at
any time, including, without limitation, when a portion of the Advance is repaid
or when Bank makes an additional Advance pertaining to Aggregate Eligible
Accounts in respect of the same Account Debtor. Each such refinancing
shall consist of the creation of a new “placeholder note” on the books of Bank
which evidences the Financed Receivable Balance with respect to such
Advance.”
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10
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The
Loan Agreement shall be amended by deleting the following, appearing as
Section 6.7:
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“
6.7 Financial
Covenants. Borrower shall maintain at all times, to be tested
as of the last day of each month, unless otherwise noted:
(a) EBDA. EBDA
for the three-month period ending on the last day of each month of at
least:
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Period
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Minimum EBDA
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December
1, 2009 through February 28, 2010
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$ | (1,325,000.00 | ) | |
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January
1, 2010 through March 31, 2010
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$ | (1,500,000.00 | ) | |
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February
1, 2010 through April 30, 2010
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$ | (2,250,000.00 | ) | |
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March
1, 2010 through May 31, 2010
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$ | (2,250,000.00 | ) | |
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April
1, 2010 through June 30, 2010
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$ | (1,500,000.00 | ) | |
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May
1, 2010 through July 31, 2010
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$ | (1,000,000.00 | ) | |
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June
1, 2010 through August 31, 2010
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$ | (500,000.00 | ) | |
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July
1, 2010 through September 30, 2010, and each three-month period ending on
the last day of each month thereafter
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$ | (100,000.00 | )” | |
and
inserting in lieu thereof the following:
“
6.7 Financial
Covenants. Borrower shall maintain at all times, to be tested
as of the last day of each month:
(a) EBDA. EBDA
for the three-month period ending on the last day of each month of at
least:
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Period
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Minimum EBDA
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April
1, 2010 through June 30, 2010
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($1,500,000.00)
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May
1, 2010 through July 31, 2010
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If
the Sale Event has occurred: ($1,500,000.00)
If
the Sale Event has not occurred: ($1,000,000.00)
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June
1, 2010 through August 31, 2010
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If
the Sale Event has occurred: ($600,000.00)
If
the Sale Event has not occurred: ($500,000.00)
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July
1, 2010 through September 30, 2010
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If
the Sale Event has occurred: ($400,000.00)
If
the Sale Event has not occurred: ($100,000.00)
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August
1, 2010 through October 31, 2010, and for each three-month period ending
on the last day of each month thereafter
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If
the Sale Event has occurred: $1.00
If
the Sale Event has not occurred:
($100,000.00)”
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11
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The
Loan Agreement shall be amended by inserting the following new
definitions, appearing alphabetically in Section 13.1
thereof:
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“ “Sale Event” means the sale of
any assets owned by Global and/or Guarantor with respect to their fraud and
special investigations unit pursuant to that certain Asset Purchase Agreement
dated as of June 11, 2010 by and among Borrower, Guarantor and GlobalOptions
Services, Inc.”
“ “Invoice Transmittal” shows
Eligible Accounts which Bank may finance and, for each such Account, includes
the Account Debtor’s, name, address, invoice amount, invoice date and invoice
number.”
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12
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The
Loan Agreement shall be amended by deleting the following definitions,
appearing in Section 13.1 thereof:
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“ “Collections” are (a) all funds
received by Bank from or on behalf of an Account Debtor for Financed
Receivables, and (b) any refinancing by Bank, to be completed at Bank’s
discretion pursuant to Section 2.3.1(b)(iii), of any Advance (or portion
thereof) which is based upon Aggregate Eligible Accounts.”
“ “EBDA” means (a) Net Income,
plus (b) to the extent deducted in the calculation of Net Income, depreciation
expense, amortization expense, non-cash impairment charges and non-cash stock
compensation expenses.”
“ “Facility Amount” is Twelve
Million Five Hundred Thousand Dollars ($12,500,000.00).”
“ “Financed Receivables” are all
those Eligible Accounts and Aggregate Eligible Accounts, including their
proceeds which Bank finances and makes an Advance, as set forth in Section
2.1.1. A Financed Receivable stops being a Financed Receivable (but
remains Collateral) when the Advance made for the Financed Receivable has been
fully paid.”
and inserting in lieu thereof the
following:
“ “Collections” are (a) all funds
received by Bank from or on behalf of an Account Debtor for Financed
Receivables, and (b) prior to the occurrence of the Sale Event, any refinancing
by Bank, to be completed at Bank’s discretion pursuant to Section 2.3.1(b)(iii),
of any Advance (or portion thereof) which is based upon Aggregate Eligible
Accounts.”
“ “EBDA” means (a) Net Income,
plus (b) to the extent deducted in the calculation of Net Income, depreciation
expense, amortization expense, non-cash impairment charges and non-cash stock
compensation expenses, plus (c) gains and/or losses related to the sale of
certain divisions and/or Subsidiaries of Borrower consented to by Bank in
writing on a case-by-case basis in Bank’s sole discretion.”
“ “Facility Amount” is (a) prior
to the occurrence of the Sale Event, Twelve Million Five Hundred Thousand
Dollars ($12,500,000.00), and (b) upon and after the occurrence of the Sale
Event, Nine Million Three Hundred Seventy Five Thousand Dollars
($9,375,000.00).”
“ “Financed Receivables” are all
those Eligible Accounts and, prior to the occurrence of the Sale Event,
Aggregate Eligible Accounts, including their proceeds which Bank finances and
makes an Advance, as set forth in Section 2.1.1. A Financed
Receivable stops being a Financed Receivable (but remains Collateral) when the
Advance made for the Financed Receivable has been fully paid.”
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13
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Upon
the occurrence of the Sale Event, the Loan Agreement shall be amended by
deleting the “Advance Request and Invoice Transmittal” form attached as
Exhibit
C thereto, and all references in the Loan Agreement to “Advance
Request and Invoice Transmittal” shall mean “Invoice
Transmittal”.
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B.
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Waiver. Bank
hereby waives Borrower’s existing defaults (if any) under the Loan
Agreement by virtue of Borrower’s failure to comply with the financial
covenant set forth in Section 6.7(a) thereof (relative to the requirement
that Borrower maintain certain EBDA) as of the months ended April 30,
2010, May 31, 2010 and June 30, 2010. Bank’s waiver of
Borrower’s compliance with such covenant shall apply only to the foregoing
specific periods.
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4. FEES. Borrower
shall reimburse Bank for all legal fees and expenses incurred in connection with
this amendment to the Existing Loan Documents.
5. RATIFICATION OF IP SECURITY
AGREEMENTS.
(a) Global
hereby ratifies, confirms and reaffirms, all and singular, the terms and
conditions of the Global IP Security Agreement and acknowledges, confirms and
agrees that the Global IP Security Agreement contains an accurate and complete
listing of all Intellectual Property Collateral as defined therein.
(b) Bode
hereby ratifies, confirms and reaffirms, all and singular, the terms and
conditions of the Bode IP Security Agreement and acknowledges, confirms and
agrees that the Bode IP Security Agreement contains an accurate and complete
listing of all Intellectual Property Collateral as defined therein.
6. RATIFICATIONS OF PERFECTION
CERTIFICATES.
(a) Global
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in a certain Perfection Certificate dated as of March 31,
2008 between Global and Bank, and acknowledges, confirms and agrees the
disclosures and information Global provided to Bank in the Perfection
Certificate have not changed, as of the date hereof.
(b) Bode
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in a certain Perfection Certificate dated as of March 31,
2008 between Bode and Bank, and acknowledges, confirms and agrees the
disclosures and information Bode provided to Bank in the Perfection Certificate
have not changed, as of the date hereof.
7. CONSISTENT
CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
8. 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.
9. 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.
10. 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.
11. 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.
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BORROWER:
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BANK:
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GLOBALOPTIONS,
INC.
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SILICON
VALLEY BANK
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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By:
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/s/ Xxxxxxxxx Xxxxxx
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Name:
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Xxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxxxx Xxxxxx
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|
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Title:
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CFO
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Title:
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VP
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|
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THE
BODE TECHNOLOGY GROUP, INC.
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||||
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxx
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|||
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Title:
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CFO
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The
undersigned, GLOBALOPTIONS
GROUP, INC. (“Guarantor”) hereby ratifies, confirms and reaffirms, all
and singular, the terms and conditions of (a) a certain Unconditional Guaranty
(the “Guaranty”) dated as of March 31, 2008, executed and delivered by
Guarantor, pursuant to which Guarantor unconditionally guaranteed the prompt,
punctual and faithful payment and performance of all Obligations of Borrower to
Bank, (b) a certain Security Agreement (the “Security Agreement”) dated as of
March 31, 2008, between Guarantor and Bank, pursuant to which Guarantor granted
Bank a continuing first priority security interest in the Collateral (as the
term is defined therein) to secure the payment and performance of the
Obligations under the Guaranty in accordance with the terms of the Security
Agreement, and (c) a certain Intellectual Property Security Agreement (the “IP
Agreement”) dated as of March 31, 2008, between Guarantor and Bank, pursuant to
which Guarantor granted Bank a continuing first priority security interest in
the Intellectual Property Collateral (as the term is defined therein) to secure
the payment and performance of the Obligations under the Guaranty in accordance
with the terms of the IP Agreement. In addition, Guarantor
acknowledges, confirms and agrees that the Guaranty, Security Agreement, and IP
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.
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx Xxxxxxxx
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Title:
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Chairman and
CEO
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