Exhibit 10.2
FIFTH LOAN MODIFICATION AGREEMENT
(EXIM LINE)
This Fifth Loan Modification Agreement (Exim Line) is entered into as
of March 30, 2001 (the "Amendment"), by and between OPEN MARKET, INC., a
Delaware corporation ("Open Market"), with its chief executive offices located
at 0 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 and FUTURETENSE, INC., a
Delaware corporation ("FutureTense"), with its chief executive offices located
at 0 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (individually and
collectively, jointly and severally, the "Borrower") and SILICON VALLEY BANK, a
California-chartered bank ("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".
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 as of September 26, 1997, evidenced by, among other documents,
(i) a certain Export-Import Bank Loan and Security Agreement between Open
Market, Folio Corporation ("Folio") and Bank dated September 26, 1997, as
amended by a First Loan Modification Agreement (Exim Line) dated December 30,
1998, a Second Loan Modification Agreement (Exim Line) dated October 22, 1999,
an Assumption Agreement by FutureTense, Inc. dated December 12, 2000, a Third
Loan Modification Agreement (Exim Line) between Borrower and Bank dated December
12, 2000, a Fourth Loan Modification Agreement (Exim Line) between Borrower and
Bank dated February 28, 2001, as further amended hereby (as amended, the "Loan
Agreement" or the "Exim Agreement"), (ii) a certain Revolving Promissory Note
(Export-Import Line) dated March 30, 2001 in the maximum principal amount
of Six Million Dollars ($6,000,000.00) (the "Note"), and (iii) a certain
Borrower Agreement dated March 30, 2001 (the "Borrower Agreement").
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 AND GUARANTIES. Repayment of the Obligations is
secured by the Collateral as described in the Loan 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.
A. Modification(s) to Loan Agreement.
1. The Loan Agreement shall be amended by deleting the following text
appearing in Section 2.1.1 thereof:
"For purposes of this Exim Agreement, "Borrowing Base" shall
mean an amount equal to: (i) ninety percent (90%) of Exim
Eligible Foreign Accounts generated by Open Market, PLUS (ii)
ninety percent (90%) of Exim Eligible Foreign Accounts
generated by FutureTense, PLUS (iii) sixty percent (60%) of
Borrower's eligible "foreign maintenance" Accounts (as
determined by Bank) less than sixty (60) days from due date
PROVIDED, HOWEVER, the aggregate availability under this Exim
Agreement
generated by the Borrower's Exim Eligible Foreign Accounts
(and by "foreign maintenance accounts") and under the
Domestic Agreement generated by the Borrower's Eligible
Receivables (and by "domestic maintenance accounts") which
are owed by the "Xxx.Xxx" entities (as determined by Bank)
shall not exceed $1,000,000.00.
IN ADDITION TO THE BORROWING LIMITATIONS CONTAINED IN THE
DEFINITIONS OF THE BORROWING BASE AND EXIM COMMITTED LINE AND
IN THIS EXIM AGREEMENT, THE MAXIMUM AMOUNT OF ADVANCES
HEREUNDER SHALL BE SUBJECT TO EACH OF THE FOLLOWING:
(A) Prior to the earlier of: (i) the occurrence of a Capital
Event (as defined in the Domestic Agreement), or (ii)
March 15, 2001, the outstanding Obligations (including,
without limitation, those arising under this Exim
Agreement, the Domestic Agreement and the Factoring
Agreement) shall not exceed at any time $4,000,000.00.
(B) The outstanding Obligations (including, without
limitation, those arising under this Exim Agreement, the
Domestic Agreement and the Factoring Agreement) shall
not exceed at any time the result of the following: (i)
the Borrowing Base under the Domestic Agreement, PLUS
(ii) the lesser of: (a) the EXIM Committed Line, or (b)
the Borrowing Base under this Exim Agreement, MINUS
(iii) $6,000,000.00.
(C) [Intentionally Deleted]
If at any time Borrower's outstanding Obligations (including,
without limitation, those arising under this Exim Agreement,
the Domestic Agreement and the Factoring Agreement) exceed
any limitation described in this Exim Agreement, the Borrower
must immediately pay in cash to Bank the excess."
and inserting in lieu thereof the following:
"For purposes of this Exim Agreement, "Borrowing Base" shall
mean an amount equal to: (i) ninety percent (90%) of Exim
Eligible Foreign Accounts generated by Open Market, PLUS (ii)
ninety percent (90%) of Exim Eligible Foreign Accounts
generated by FutureTense, PLUS (iii) sixty percent (60%) of
Borrower's eligible "foreign maintenance" Accounts (as
determined by Bank) less than sixty (60) days from due date
PROVIDED, HOWEVER, the aggregate availability under this Exim
Agreement generated by the Borrower's Exim Eligible Foreign
Accounts (and by "foreign maintenance accounts") and under
the Domestic Agreement generated by the Borrower's Eligible
Receivables (and by "domestic maintenance accounts") which
are owed by the "Xxx.Xxx" entities (as determined by Bank)
shall not exceed $500,000.00.
IN ADDITION TO THE BORROWING LIMITATIONS CONTAINED IN THE
DEFINITIONS OF THE BORROWING BASE AND EXIM COMMITTED LINE,
AND IN THIS EXIM AGREEMENT, THE MAXIMUM AMOUNT OF ADVANCES
HEREUNDER SHALL AT ALL TIMES BE SUBJECT TO EITHER (A) OR (B)
BELOW:
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(A) The Borrower shall at all times maintain a minimum cash
balance at Bank in an amount equal to or greater than the
aggregate of $6,000,000, PLUS an amount equal to all
outstanding Obligations (including, without limitation, those
arising under this Exim Agreement, the Domestic Agreement,
the Factoring Agreement, and all letter of credit exposure);
OR
(B) The Borrower shall at all times maintain a Borrowing Base
(FOR PURPOSES OF THIS CALCULATION IN THIS PARAGRAPH (B), THE
BORROWING BASE MAY NOT EXCEED $12,000,000.00) in an amount no
less than Six Million Dollars ($6,000,000.00) in excess of
all outstanding Obligations (including, without limitation,
those arising under this Exim Agreement, the Domestic
Agreement, the Factoring Agreement, and all letter of credit
exposure).
If at any time Borrower's outstanding Obligations (including,
without limitation, those arising under this Exim Agreement, the
Domestic Agreement, the Factoring Agreement, and all letter of
credit exposure) exceed any limitation described in this Exim
Agreement, the Borrower must immediately pay in cash to Bank the
excess."
2. The "Collateral" under the Loan Agreement shall be amended to
include, in addition to those items described in the Loan
Agreement, all right, title and interest of Borrower in and to the
following:
"All goods, equipment, inventory, contract rights, trademarks,
servicemarks, trade styles, trade names, patents, patent
applications, leases, license agreements, franchise agreements,
general intangibles, accounts, documents, instruments, chattel
paper, cash, deposit accounts, fixtures, letters of credit,
investment property, and financial assets, whether now owned or
hereafter acquired, wherever located; and
Any copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and
derivative work, whether published or unpublished, now owned or
later acquired; any patents, trademarks, service marks and
applications therefor; any trade secret rights, including any
rights to unpatented inventions, know-how, operating manuals,
license rights and agreements and confidential information, now
owned or hereafter acquired; or any claims for damages by way of
any past, present and future infringement of any of the foregoing;
and
All Borrower's Books relating to the foregoing and any and all
claims, rights and interests in any of the above and all
substitutions for, additions, attachments, accessories, accessions
and improvements to and replacements, products, proceeds and
insurance proceeds of any or all of the foregoing."
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3. The Borrower hereby grants a security interest to Bank in all of
its right, title and interest in the "Collateral" defined in the
Loan Agreement, as amended hereby, to secure all Obligations under
the Loan Agreement, as amended hereby.
4. 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 this Exim
Agreement (including, without limitation, the financial covenants
and reporting requirements appearing in the Schedule to the
Domestic Agreement), and all such other representations,
warranties and covenants with respect to the Domestic Loan
Documents appearing in the Exim Agreement, remain 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.
5. Any Event of Default under the Domestic Agreement, including,
without limitation, those described in Section 7 thereof, shall be
an Event of Default under the Exim Agreement, notwithstanding any
termination of the Domestic Loan Documents and the repayment of
all obligations under the Domestic Loan Documents.
6. In addition to the rights and remedies of Bank described in the
Exim Agreement, the rights and remedies of Bank under the Exim
Agreement shall include all rights and remedies under the Domestic
Agreement, including, without limitation, those described in
Section 7 thereof, notwithstanding any termination of the Domestic
Loan Documents and the repayment of all obligations under the
Domestic Loan Documents.
7. On or before the execution of this Amendment, the Borrower shall:
(i) transfer all primary operating accounts and cash management
services to the Bank, and (ii) terminate any lock box arrangement
with any other institution and enter into a lock box arrangement
with the Bank on terms satisfactory to the Bank pursuant to which
all amounts payable to the Borrower shall be directed to the Bank.
Any failure by Borrower to perform any requirement of this
paragraph shall be an Event of Default under the Loan Agreement,
as amended hereby.
8. On or before the execution of this Amendment, all bank and
investment accounts, cash, investment property and securities of
Open Market Securities, Inc., a Massachusetts subsidiary of Open
Market, Inc., shall be maintained and deposited with the Bank on
terms acceptable to Bank as collateral under a certain Security
Agreement granted by Open Market Securities, Inc. to Bank. Any
failure by Borrower to perform any requirement of this paragraph
shall be an Event of Default under the Loan Agreement, as amended
hereby.
4. FEE. The Borrower shall 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.
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.
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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 and endorsers of Existing
Loan Documents, unless the party is expressly released by Bank in writing. No
maker, endorser, or guarantor 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 of the date first
written above.
("BORROWER")
OPEN MARKET, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: CFO
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FUTURETENSE, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: VP
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("BANK")
SILICON VALLEY BANK, doing business as SILICON
VALLEY EAST
By: /s/ Xxxx Atansoff
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Name: Xxxx Atansoff
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Title: Vice President
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SILICON VALLEY BANK
By: N/A
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Name:
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Title:
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(signed in Santa Xxxxx County, California)
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