EXHIBIT 10.4
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FIRST LOAN MODIFICATION AGREEMENT
(EXIM Line)
This First Loan Modification Agreement (EXIM Line) is executed on
January 17, 2001, to be effective as of December 29, 2000, by and between
SILICON VALLEY BANK, a California-chartered bank with its principal place of
business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 and with a loan production
office located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, doing business under the name "Silicon Valley East" ("Bank")
and DATAWATCH CORPORATION, a Delaware corporation with its chief executive
office located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000
(Datawatch US"), DATAWATCH INTERNATIONAL LIMITED, a company registered under the
laws of England and Wales with its principal place of business at 10th Floor,
Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxx Xxx, Xxxxxxxxxxxxx, Xxxxxxx XX0 0XX
("Datawatch International"), DATAWATCH EUROPE LIMITED, a company registered
under the laws of England and Wales with its principal place of business at The
Software Centre East Way, Xxx Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx,
Xxxxxxx XX00 0XX ("Datawatch Europe"), and GUILDSOFT LIMITED, a company
registered under the laws of England and Wales with its principal place of
business at The Software Centre East Way, Xxx Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, Xxxxxxx XX00 0XX ("Guildsoft") (hereinafter Datawatch US, Datawatch
International, Datawatch Europe and Guildsoft are referred to herein jointly and
severally as the "Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan
arrangement dated March 16, 1999, evidenced by, among other documents, a certain
Export-Import Bank Loan and Security Agreement dated as of December 27, 1999
between Borrower and Bank (the "Loan Agreement"). The Loan Agreement established
a working capital line of credit in favor of the Borrower in the maximum
principal amount of Two Million Dollars ($2,000,000.00) (the "Exim Committed
Line"). Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Obligations".
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement, and a certain Intellectual
Property Security Agreement dated as of December 27, 1999 by Datawatch US in
favor of Bank (the "Intellectual Property Security Agreement") (hereinafter, the
Loan Agreement, as amended hereby, and the Intellectual Property Security
Agreement, together with any other collateral security granted to Bank, shall be
referred to as 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.
A. Modification(s) to Loan Agreement.
1. The Loan Agreement shall be amended by deleting the
following text appearing as recital paragraph (A) on
Page 1 thereof:
"A. Borrower and Bank are parties to that
certain Amended and Restated Loan and
Security Agreement dated March 16, 1999, as
affected and amended to date, including
without limitation, pursuant to Loan
Modification Agreement of even date (as so
amended and as amended to date, the
"Domestic Agreement"), together with related
documents executed in conjunction
therewith."
and inserting in lieu thereof the following:
"A. Datawatch US and Bank are parties to
that certain Amended and Restated Loan and
Security Agreement dated March 16, 1999, as
affected and amended to date, including
without limitation, pursuant to Second Loan
Modification Agreement of even date (as so
amended and as may be further amended from
time to time, the "Domestic Agreement"),
together with related documents executed in
conjunction therewith."
2. The Loan Agreement shall be amended by deleting the
following definition appearing in Section 1.1
thereof:
""Exim Maturity Date" means the earliest of
(i) the Maturity Date under the Domestic
Loan Documents, or (ii) the date which is
one day prior to one (1) year from the date
of this Exim Agreement."
and inserting in lieu thereof the following:
""Exim Maturity Date" means the earliest of
(i) the Maturity Date under the Domestic
Loan Documents, or (ii) December 31, 2001."
3. The Borrower acknowledges, confirms and agrees that
its representations, warranties and covenants with
respect to the Domestic Loan Documents under Sections
5.1, 6.1, 7.1 of the Loan Agreement, and all such
other representations, warranties and covenants
appearing in the Loan Agreement, remain true and in
full force and effect. The Borrower acknowledges,
confirms and agrees that it shall continue to comply
with all such representations, warranties and
covenants described in the foregoing sentence
notwithstanding any termination of the Domestic Loan
Documents or the repayment of all obligations under
the Domestic Loan Documents.
4. Datawatch US ratifies, confirms and reaffirms, all
and singular, the terms and conditions of: (i) a
certain Collateral Assignment, Patent Mortgage and
Security Agreement dated as of November 1, 1994 (the
"1994 IP Agreement") between Datawatch US and Bank,
and acknowledges, confirms and agrees that said
Collateral Assignment, Patent Mortgage and Security
Agreement shall remain in full force and effect, and
(ii) a certain Intellectual Property Security
Agreement dated as of December 27, 1999 (the "1999 IP
Agreement") by Datawatch US in favor of Bank, and
acknowledges, confirms and agrees that said
Intellectual Property Security Agreement shall remain
in full force and effect.
Datawatch US hereby acknowledges, confirms and agrees
that the Collateral under the 1994 IP Agreement and
the Intellectual Property Collateral under the 1999
IP Agreement shall be amended to include, without
limitation, the intellectual property owed by the
Datawatch US appearing on Exhibit B attached hereto
and made a part hereof.
4. FEE. Borrower shall pay to Bank a fee for the modification of the
Export-Import Bank line equal to Thirty Thousand Dollars ($30,000.00), which fee
shall be due on the date hereof and shall be deemed fully earned as of the date
hereof. The Borrower shall also reimburse Bank for all legal fees and expenses
incurred in connection with this amendment to the Existing Loan Documents.
5. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
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6. 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.
7. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Obligations.
8. 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.
9. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts in
any action, suit, or proceeding of any kind against it which arises out of or by
reason of this Loan Modification Agreement; provided, however, that if for any
reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa Xxxxx County, California.
10. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
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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.
BORROWER: BANK:
DATAWATCH CORPORATION SILICON VALLEY BANK, doing business as
SILICON VALLEY EAST
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxx
-------------------------------- ---------------------------------
Title: President Title: SVP
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DATAWATCH INTERNATIONAL LIMITED SILICON VALLEY BANK
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxxx Xxxxxx
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Title: President Title: Loan Administrative Manager
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(signed in Santa Xxxxx County,
California)
DATAWATCH EUROPE LIMITED
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: President
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GUILDSOFT LIMITED
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: President
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Exhibit B to First Loan Modification Agreement
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Trademark: QUETZAL/SC
Status: Pending
Application Number: 821,537
Country: Australia
Owner: Datawatch Corporation
Filed: 28-Jan-2000
Classes: 9
Trademark: QUETZAL/SC
Status: Pending
Application Number: 1,045,423
Country: Canada
Owner: Datawatch Corporation
Filed: 03-Feb-2000
Classes: 9
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