FIRST LOAN MODIFICATION AGREEMENT
EXHIBIT 10.2
This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as
of October 19, 2009, and is effective as of September 30, 2009 by and among 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 000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 (“Bank”), TRUSTWAVE HOLDINGS, INC., a Delaware corporation (“Holdings”),
TW MIRAGE NETWORKS, INC., a Texas corporation (“TW”), TRUSTWAVE INTERMEDIATE, INC., a Delaware
corporation (“Intermediate”), and TW VERICEPT CORPORATION, a Delaware corporation (formerly known
as “TrustWave Acquisition, Inc.) (“Vericept” and individually and collectively, jointly and
severally, with Holdings, TW and Intermediate, “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 August 19, 2009, evidenced by, among other documents, a certain Amended and
Restated Loan and Security Agreement dated as of August 19, 2009, 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 the Intellectual Property Collateral as described in a certain
Intellectual Property Security Agreement dated August 19, 2009, by Vericept in favor of Bank (the
“IP Security Agreement 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”.
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, appearing as Section 6.2(a)(ii) thereof, in its entirety: |
“(ii) as soon as available, but no later than one hundred fifty
(150) days after the last day of Borrower’s fiscal year (on or before
August 15, 2009 with respect Borrower’s fiscal year ending December
31, 2007 and on or before September 30, 2009 with respect Borrower’s
fiscal year ending December 31, 2008), audited consolidated financial
statements prepared under GAAP, consistently applied, together with
an unqualified opinion on the financial statements from an
independent certified public accounting firm acceptable to Bank in
its reasonable discretion;”
and inserting in lieu thereof the following:
“(ii) as soon as available, but no later than one hundred fifty
(150) days after the last day of Borrower’s fiscal year (on or before
August 15, 2009 with respect Borrower’s fiscal year ending December
31, 2007 and on or before October 31, 2009 with respect Borrower’s
fiscal year ending December 31, 2008), audited consolidated financial
statements prepared under GAAP,
consistently applied, together with an unqualified opinion on
the financial statements from an independent certified public
accounting firm acceptable to Bank in its reasonable discretion;”
2 | The Compliance Certificate appearing as Exhibit C to the Loan Agreement is hereby replaced with the Compliance Certificate attached as Exhibit A hereto. |
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 INTELLECTUAL PROPERTY SECURITY AGREEMENT. Vericept hereby ratifies,
confirms and reaffirms, all and singular, the terms and conditions of the IP Security Agreement,
and acknowledges, confirms and agrees that the IP Security Agreement contains an accurate and
complete listing of all Intellectual Property Collateral as defined in the IP Security Agreement,
and shall remain in full force and effect.
6. RATIFICATION OF PERFECTION CERTIFICATES. Holdings hereby ratifies, confirms and
reaffirms, all and singular, the terms and disclosures contained in a certain Perfection
Certificate dated as of August 19, 2009, by Holdings and delivered to Bank (the “Holdings
Perfection Certificate”), and acknowledges, confirms and agrees the disclosures and information
Holdings provided to Bank in the Holdings Perfection Certificate have not changed, as of the date
hereof. TW hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures
contained in a certain Perfection Certificate dated as of August 19, 2009, by TW and delivered to
Bank (the “TW Perfection Certificate”), and acknowledges, confirms and agrees the disclosures and
information TW provided to Bank in the TW Perfection Certificate have not changed, as of the date
hereof. Intermediate hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in a certain Perfection Certificate dated as of August 19, 2009, by
Intermediate and delivered to Bank (the “Intermediate Perfection Certificate”), and acknowledges,
confirms and agrees the disclosures and information Intermediate provided to Bank in the
Intermediate Perfection Certificate have not changed, as of the date hereof. Vericept hereby
ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a
certain Perfection Certificate dated as of August 19, 2009, by Vericept and delivered to Bank (the
“Intermediate Perfection Certificate”), and acknowledges, confirms and agrees the disclosures and
information Intermediate provided to Bank in the Intermediate 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. CONFIDENTIALITY. Bank may use confidential information for the development of
databases, reporting purposes, and market analysis, so long as such confidential information is
aggregated and anonymized prior to distribution unless otherwise expressly permitted by Borrower.
The provisions of the immediately preceding sentence shall survive the termination of the Loan
Agreement.
12. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank.
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This Loan Modification Agreement is executed as a sealed instrument as of the date first written above.
BORROWER: | BANK: | |||||
TRUSTWAVE HOLDINGS, INC. | SILICON VALLEY BANK | |||||
By:
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By: | |||||
Name:
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Name: | |||||
Title:
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Title: | |||||
TW MIRAGE NETWORKS, INC. | ||||||
By: |
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Name: |
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Title: |
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TRUSTWAVE INTERMEDIATE, INC. | ||||||
By: |
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Name: |
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Title: |
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TW VERICEPT CORPORATION | ||||||
By: |
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Name: |
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Title: |
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The undersigned, TRUSTWAVE LIMITED, a company registered in England & Wales, ratifies,
confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of Guarantee
in favor of Bank dated September 25, 2008 (the “Guarantee”) and acknowledges, confirms and agrees
that the Guarantee 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 therewith.
TRUSTWAVE LIMITED | ||||
By: |
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Name: |
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Title: |
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The undersigned, TRUSTWAVE HOLDINGS LIMITED, a company registered in England & Wales,
ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Deed of
Guarantee in favor of Bank dated November 27, 2007 (the “Guarantee”) and acknowledges, confirms and
agrees that the Guarantee 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 therewith.
TRUSTWAVE HOLDINGS LIMITED | ||||
By: |
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Name: |
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Title: |
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EXHIBIT A
EXHIBIT C — COMPLIANCE CERTIFICATE
TO:
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SILICON VALLEY BANK | Date: | ||
FROM:
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TRUSTWAVE HOLDINGS, INC. | |||
TW MIRAGE NETWORKS, INC. | ||||
TRUSTWAVE INTERMEDIATE, INC. | ||||
TW VERICEPT CORPORATION |
The undersigned authorized officers of TRUSTWAVE HOLDINGS, INC., TW MIRAGE NETWORKS, INC.,
TRUSTWAVE INTERMEDIATE, INC. and TW VERICEPT CORPORATION (individually and collectively, jointly
and severally, the “Borrower”) certify that under the terms and conditions of the Loan and Security
Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for
the period ending _______________ with all required covenants except as noted below, (2) there are
no Events of Default, (3) all representations and warranties in the Agreement are true and correct
in all material respects on this date except as noted below; provided, however, that such
materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be true, accurate and
complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has
timely filed all required tax returns and reports, and Borrower has timely paid all foreign,
federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as
otherwise permitted pursuant to the terms of Section 5.8 of the Agreement, and (5) no Liens have
been levied or claims made against Borrower relating to unpaid employee payroll or benefits of
which Borrower has not previously provided written notification to Bank. Attached are the required
documents supporting the certification. The undersigned certify that these are prepared in
accordance with generally GAAP consistently applied from one period to the next except as explained
in an accompanying letter or footnotes. The undersigned acknowledge 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. Capitalized terms used but not otherwise defined herein shall have the meanings given
them in the Agreement.
Please indicate compliance status by circling Yes/No under “Complies” column.
Reporting Covenant | Required | Complies | ||
Monthly consolidated and consolidating financial statements with Compliance Certificate
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Monthly within 30 days | Yes No | ||
Annual financial statement (CPA Audited)
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FYE within 150 days** | Yes No | ||
Board Approved Projections
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Annually, within 30 days after year end | Yes No | ||
Borrowing Base Certificate (together with A/R & A/P Agings, and deferred revenue report)
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Monthly within 30 days | Yes No | ||
Audit
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Annually | Yes No |
Financial Covenant | Required | Actual | Complies | |||
Maintain on a Monthly Basis: |
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(a) Liquidity |
1.75:1.0 | _____:1.0 | Yes No | |||
(b) EBITDA* |
$_________ | $________ | Yes No | |||
(c) Capital Expenditures |
$3,200,000 | $_________ | Yes No |
* | As set forth in section 6.7(b) of the Loan Agreement. | |
** | 8/15/2009 for FY 2007; 10/31/09 for FY 2008 |