EIGHTH AMENDMENT TO FORBEARANCE AGREEMENT AND NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT
10.26
EIGHTH
AMENDMENT TO FORBEARANCE AGREEMENT
AND
NINTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
Eighth Amendment to Forbearance Agreement and Ninth Amendment to Loan and
Security Agreement (the “ Amendment
”), is entered into as of January 13, 2010, by and between SQUARE 1 BANK (the “
Bank
”) and CLEARONE COMMUNICATIONS, INC., NETSTREAMS, INC.
and NETSTREAMS, LLC (collectively, “ Borrower ”
).
RECITALS
Borrower
and Bank are parties to that certain Loan and Security Agreement dated as of
November 12, 2008 (as amended from time to time, with related documents,
including that certain Joinder to Loan and Security Agreement dated as of
November 3, 2009, the “Loan Agreement”).
Borrower and Bank are parties to that certain Forbearance Agreement and First
Amendment to Loan and Security Agreement, dated as of March 31, 2009 (as amended
from time to time, the “ Forbearance
Agreement ”). The parties desire to amend the Loan Agreement
and the Forbearance Agreement in accordance with the terms of this
Amendment.
Now,
therefore, the parties agree as follows:
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1)
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Bank
hereby waives Borrower’s expected violation of the monthly reporting
requirements, as set forth in Section 6.2(a) and Section 6.2 (b) of the
Loan Agreement, for the reporting period ended December 31,
2009.
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2)
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Section
3 of the Forbearance Agreement is hereby amended and restated, in its
entirety, as follows:
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3.
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Forbearance . Borrower acknowledges the
existence of the Existing Default under the Loan
Agreement. Borrower further acknowledges and agrees that Bank
is not in any way agreeing to waive such Existing Default as a result of
this Agreement or the performance by the parties of their respective
obligations hereunder or thereunder. Subject to the conditions
contained herein and performance by Borrower of all of the terms of this
Agreement and the Loan Agreement after the date hereof, Bank shall, until
the earliest of (i) Feburary 15, 2010, or (ii) such date that there shall
occur any further Event of Default (the “Forbearance Period”), forbear from
exercising any remedies that it may have against Borrower as a result of
the occurrence of the Existing Default. Such forbearance does
not apply to any other Event of Default or other failure by Borrower to
perform in accordance with the Loan Agreement or this
Agreement. This forbearance shall not be deemed a continuing
waiver or forbearance with respect to any Event of Default of a similar
nature that may occur after the date of this
Agreement.
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3)
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The
following definition in Exhibit A to the Loan Agreement is hereby amended
and restated, in its entirety, as
follows:
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“ Term Loan Maturity Date ”
means February 15, 2010.
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4)
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Unless
otherwise defined, all initially capitalized terms in this Amendment shall
be as defined in the Loan Agreement or the Forbearance
Agreement. The Loan Agreement or the Forbearance Agreement, as
amended hereby, shall be and remain in full force and effect in accordance
with its respective terms and hereby is ratified and confirmed in all
respects. Except as expressly set forth herein, the execution,
delivery, and performance of this Amendment shall not operate as a waiver
of, or as an amendment of, any right, power, or remedy of Bank under the
Loan Agreement or Forbearance Agreement, as in effect prior to the date
hereof. Borrower ratifies and reaffirms the continuing
effectiveness of all agreements entered into in connection with the Loan
Agreement or Forbearance Agreement.
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5)
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Borrower
represents and warrants that the representations and warranties contained
in the Loan Agreement or Forbearance Agreement are true and correct as of
the date of this Amendment.
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6)
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This
Amendment may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one
instrument.
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7)
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As
a condition to the effectiveness of this Amendment, Bank shall have
received, in form and substance satisfactory to Bank, the
following:
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(a)
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this
Amendment, duly executed by
Borrower;
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(b)
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payment
of all Bank Expenses, including Bank’s expenses for the documentation of
this Amendment and any related documents, which may be debited from any of
Borrower's accounts; and
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such
other documents and completion of such other matters, as Bank may
reasonably deem necessary or
appropriate.
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[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
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CLEARONE
COMMUNICATIONS, INC.
By:
/s/ XXXXXX XXXXXXXXX
Its:
President & CEO
NETSTREAMS,
INC.
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SQUARE
1 BANK
By:
/s/ XXXXX XXXXXXXXXX
Its:
SVP - Regional Manager
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By: /s/
XXXXXX XXXXXXXXX
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Its:
Director
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NETSTREAMS,
LLC
By: /s/
XXXXX XXXXXXXXX
Its:
Member Representative
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