THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.12
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (the “Third Amendment”) is entered into
and is effective this 30th day of March, 2009 by and between BlueCrest Venture Finance Master Fund
Limited (“Lender”), as assignee of Xxxxxxx Capital Finance, LLC (“Original Lender”‘) and Xxxxxxx
Debt Acquisition Fund, Ltd. (“Initial Assignee”), and SPS Commerce, Inc. (“Borrower”).
RECITALS
A. Original Lender provided one or more credit facilities or arrangements to
Borrower pursuant to that certain Loan and Security Agreement by and between Original Lender and
Borrower, dated as of February 3, 2006 (the “Loan Agreement”), which Loan Agreement had been
assigned by Original Lender to Original Assignee, as of May 5, 2006, and which was then assigned to
Lender as of December 18, 2006.
B. In connection with the Loan Agreement, Borrower has granted to Lender a first priority
security interest in the Collateral. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Loan Agreement.
C. Lender and Borrower entered into an Amendment to Loan and Security Agreement, dated as of
March 20, 2007, whereby Lender made an additional equipment loan to Borrower.
D. Lender and Borrower entered into a Second Amendment to Loan and Security Agreement, dated
as of March 24, 2008, whereby Lender made an additional equipment loan to Borrower.
E. Lender and Borrower now desire to enter into an additional equipment loan transaction (the
“Third Additional Equipment Loan”) which shall be subject to the terms and conditions of the Loan
Agreement (as amended), except as modified hereby, and which will be secured by the Collateral.
NOW, THEREFORE, in consideration of the promises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereto agree as follows:
1. Third Additional Equipment Loan.
(a) Section 2.1 of the Loan Agreement shall be amended to add a new section (e) as follows:
(e) Third Additional Equipment Loan. Subject to Section 2.5, Lender
shall loan to Borrower from time to time on or prior to December 31, 2009,
one or more equipment loans (the “Third Additional Equipment
Loan”) pursuant to the terms and conditions hereof, in an aggregate amount
not to exceed One Million One Hundred Thousand and 00/100 Dollars
($1,100,000.00), the proceeds of which shall be used to purchase Equipment.
This is not a revolving line of credit and Borrower may not repay and
re-borrow the amounts advanced or to be advanced under this Section 2.1(d).
Each advance in respect of the Third Additional Equipment Loan shall be made
on notice (substantially in the form of Exhibit C hereto and setting forth a
schedule describing in detail the Equipment against which an advance is to
be made hereunder) given by Borrower to Lender no later than 9:00 a.m.
(prevailing Chicago time) not less than three (3) Business Days prior to the
date of such proposed borrowing. Each advance in respect of the Third
Additional Equipment Loan shall be repaid in thirty-six (36) month
amortization of principal and interest (paid in arrears), such payments to
be made on the first Business Day of each month commencing on the first
Business Day of the month following the date of such advance in respect of
the Third Additional Equipment Loan borrowing (the “Initial Third Additional
Equipment Loan Payment Date”); provided, however, that if the Initial Third
Additional Equipment Loan Payment Date is not at least 15 days after the
date the advance in respect of the Third Additional Equipment Loan is made,
such payments shall commence on the first Business Day of the immediately
succeeding month and Borrower shall make one interest only payment on the
Initial Third Additional Equipment Loan Payment Date.
(b) The Third Additional Equipment Loan shall be considered a “Loan” for all purposes of the
Loan Agreement and the obligations of Borrower thereunder shall be included in the definition of
“Borrower’s Liabilities” thereunder. Any note(s) delivered by Borrower to Lender in connection
with the Third Additional Equipment Loan shall be included in the definition of “Other Agreements”
for all purposes of the Loan Agreement.
(c) Section 3.1 of the Loan Agreement shall be amended to add the following sentence after the
word “select.” in line 13 thereof:
“Each advance in respect of the Third Additional Equipment Loan shall bear
interest payable monthly in arrears on the first Business Day of each month,
calculated on the basis of a 360 day year and the actual number of days
elapsed, at a per annum rate equal to 12.75%.”
(d) The first sentence of Section 3.4 of the Loan Agreement shall be amended in its entirety
as follows:
“Provided that an “Event of Default” (hereinafter defined) does not exist,
the application of payments received by Lender pursuant to this Loan
Agreement shall be applied first to any and all late charges, fees and
expenses then due and payable hereunder; second to interest then due and
payable hereunder; third to the principal of the Term Loan then due and
payable, fourth pro rata to the principal of the Equipment Loan, the
Additional Equipment Loan, the Second Additional Equipment Loan and
the Third Additional Equipment Loan then due and payable, and finally to the
principal of the Revolving Advances then outstanding.”
(e) The last sentence of Section 4.3(b) of the Loan Agreement shall be amended in its entirety
as follows:
“A notice of termination or reduction given hereunder may be conditioned
upon the closing by Borrower of any other transaction; provided, however,
that Borrower shall pay Lender a fee of $500 in the event of the failure of
Borrower to terminate or reduce the unused portion of the Revolving
Commitment by the amount contained in such notice on the date specified
therein; and provided, further, that only one such payment shall be due
under Section 4.3 in the event of a concurrent failure to terminate or
reduce the Revolving Commitment and prepay, in whole or part, the Term Loan,
the Equipment Loan, the Additional Equipment Loan, the Second Additional
Equipment Loan or the Third Additional Equipment Loan, as specified in a
notice from Borrower.”
(f) Section 4.3(c) of the Loan Agreement shall be amended in its entirety as follows:
“(c) Borrower may, upon at least twenty (20) Business Days’ prior written
notice to Lender (stating the proposed date of prepayment and the principal
amount of the Term Loan, the Equipment Loan, the Additional Equipment Loan,
the Second Additional Equipment Loan or the Third Additional Equipment Loan
to be prepaid), prepay the outstanding principal amount of the Term Loan,
the Equipment Loan, the Additional Equipment Loan, the Second Additional
Equipment Loan or the Third Additional Equipment Loan then outstanding in
whole, or in part (but any such partial payment shall equal at least 25% of
the aggregate principal amount outstanding of the Term Loan, the Equipment
Loan, the Additional Equipment Loan, the Second Additional Equipment Loan
and the Third Additional Equipment Loan), by paying to Lender, in
immediately available funds, an amount equal to the sum of (i) the principal
amount of the Term Loan, the Equipment Loan, the Additional Equipment Loan,
the Second Additional Equipment Loan and the Third Additional Equipment Loan
contained in the foregoing notice, (ii) all accrued and unpaid interest on
the amounts of the Term Loan, the Equipment Loan, the Additional Equipment
Loan, the Second Additional Equipment Loan, and the Third Additional
Equipment Loan to be repaid through the date of prepayment, and (iii) (A) in
the event that such prepayment is made on or prior to the first anniversary
of the date of this Loan Agreement (in the case of prepayment of the Term
Loan or the Equipment Loan), the first anniversary of the date of the
Amendment to the Loan and Security Agreement pursuant to which Lender agreed
to make the Additional Equipment Loan (in the case of prepayment of the
Additional Equipment Loan), the first anniversary of the date of the Second
Amendment to the Loan and Security Agreement pursuant to which Lender agreed
to make the Second Additional Equipment Loan (in
the case of prepayment of the Second Additional Equipment Loan), or the
first anniversary of the date of the Third Amendment to the Loan and
Security Agreement pursuant to which Lender agreed to make the Third
Additional Equipment Loan (in the case of prepayment of the Third Additional
Equipment Loan), a prepayment premium equal to 2.50% of the principal amount
being unpaid, or (B) in the event that such prepayments is made on or prior
to the second anniversary of the date of this Loan Agreement (in the case of
prepayment of the Term Loan or the Equipment Loan), the second anniversary
of the date of the Amendment to the Loan and Security Agreement pursuant to
which Lender agreed to make the Additional Equipment Loan (in the case of
prepayment of the Additional Equipment Loan), the second anniversary of the
date of the Second Amendment to the Loan and Security Agreement pursuant to
which Lender agreed to make the Second Additional Equipment Loan (in the
case of prepayment of the Second Additional Equipment Loan), or the second
anniversary of the date of the Third Amendment to the Loan and Security
Agreement pursuant to which Lender agreed to make the Third Additional
Equipment Loan (in the case of prepayment of the Third Additional Equipment
Loan), a prepayment premium equal to 1.50% of the principal amount being
prepaid, or (C) in the event that such prepayments is made on or prior to
the third anniversary of the date of this Loan Agreement (in the case of
prepayment of the Term Loan or the Equipment Loan), the third anniversary of
the date of the Amendment to the Loan and Security Agreement pursuant to
which Lender agreed to make the Additional Equipment Loan (in the case of
prepayment of the Additional Equipment Loan), the third anniversary of the
date of the Second Amendment to the Loan and Security Agreement pursuant to
which Lender agreed to make the Second Additional Equipment Loan (in the
case of prepayment of the Second Additional Equipment Loan), or the third
anniversary of the date of the Third Amendment to the Loan and Security
Agreement pursuant to which Lender agreed to make the Third Additional
Equipment Loan (in the case of prepayment of the Third Additional Equipment
Loan), a prepayment premium equal to 0.75% of the principal amount being
prepaid; provided, however, that no prepayment penalty shall be payable
hereunder to the extent that (i) the Term Loan, the Equipment Loan, the
Additional Equipment Loan, the Second Additional Equipment Loan or the Third
Additional Equipment Loan is prepaid, in whole or in part, out of the
proceeds of an initial public offering, or (ii) the Term Loan, the Equipment
Loan, the Additional Equipment Loan, the Second Additional Equipment Loan
and the Third Additional Equipment Loan are prepaid in whole in connection
with any merger, sale or other business disposition. A notice of prepayment
given hereunder may be conditioned upon the closing by Borrower of any other
transaction; provided, however, that Borrower shall pay Lender a fee of $500
in the event of the failure of Borrower to pay the amount contained in such
notice on the prepayment date specified therein; and provided,
further, that only one such payment shall be due under Section 4.3 in the
event of a concurrent failure to terminate or reduce the Revolving
Commitment and prepay, in whole or part the Term Loan, the Equipment Loan,
the Additional Equipment Loan, the Second Additional Equipment Loan or the
Third Additional Equipment Loan as specified in a notice from Borrower.”
2. Revolving Loan.
(a) The last sentence of the definition of Revolving Commitment” shall be amended to
read in its entirety as follows:
“The initial amount of Lender’s Revolving Commitment is Three Million Five
Hundred Thousand Dollars ($3,500,000).”
(b) The definition of “Revolving Loan Termination Date” shall be amended to read in its
entirety as follows:
“Revolving Loan Termination Date” shall mean the earliest of (a) Xxxxx 00,
0000, (x) the date of termination of the Revolving Commitments pursuant to
Section 4.3 hereof, and (c) the date on which Borrower Liabilities become
due and payable pursuant to Section 8.2 hereof.
(c) The first sentence of Section 3.1 of the Loan Agreement shall be amended in its entirety,
effective as of March 30, 2009, as follows:
“Each Revolving Advance made pursuant to this Agreement shall bear interest
payable monthly in arrears on the first Business Day of each month
calculated on a 360 day year and actual days elapsed at a rate equal to
9.00% per annum.”
(d) The Commitment Fee payable by Borrower pursuant to Section 3.2 (a) of the Loan Agreement
shall be equal to .75% per annum (pro-rated daily) on the total amount of the Revolving Commitment,
payable upon execution of this Third Amendment for the period from the date hereof through March
31, 2010 and annually thereafter.
3. Acknowledgement by Borrower. Borrower acknowledges that to the best of its
knowledge, as of the date hereof, there are no Events of Default that have occurred and which are
continuing under the Loan Agreement.
4. Due Diligence Fee. Lender acknowledges that Borrower has heretofore paid to Lender
a due diligence fee in the amount of $5,000 to cover all costs and expenses incurred by Lender in
connection with the preparation and negotiation of, and the consummation of the transactions
contemplated by, this Third Amendment to the Loan Agreement, and Borrower has no obligation to
reimburse Lender therefor to the extent such costs and expenses exceed the amount of such fee.
5. Governing Law. This Third Amendment shall be governed by and construed in
accordance with the laws of the State of Illinois (without giving effect to its laws of conflicts)
and to the extent applicable, federal law.
6. Effect of Amendment. Except as expressly modified hereby, the terms and conditions
of the Loan Agreement (as amended) remain in full force and effect.
IN WITNESS WHEREOF, this Third Amendment has been duly executed and delivered by the parties
hereto as of the date first above written.
| BLUECREST VENTURE FINANCE MASTER FUND LIMITED | ||||
| acting through its duly appointed agent and investment | ||||
| manager, BlueCrest Capital Management LLP | ||||
By: |
/s/ Xxxxx Xxx | |||
| Name: Xxxxx Xxx | ||||
| Title: C.O.O. | ||||
| SPS COMMERCE, INC. | ||||
By: |
/s/ Xxxxxxxx X. Xxxxxx | |||
| Name: Xxx Xxxxxx | ||||
| Title: CFO | ||||
