EXHIBIT 10.2
LOAN DOCUMENT MODIFICATION AGREEMENT
(NO. 1; DATED AS OF SEPTEMBER 24, 2001)
---------------------------------------
LOAN DOCUMENT MODIFICATION AGREEMENT dated as of September 24, 2001 by and
among the parties hereto who are identified on the signature page hereof as the
original borrowers (the "Original Borrowers") DATA DIMENSIONS, INC., a Delaware
corporation which pursuant to this Agreement is becoming an additional borrower
hereunder (the "New Borrower," and together with the Original Borrower, the
"Borrowers") and SILICON VALLEY BANK (the "Bank"), a California chartered bank
with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000, and with a loan production office located at Wellesley Xxxxxx
Xxxx, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, doing business under the name
"Silicon Valley East".
1. Reference to Existing Loan Documents.
-------------------------------------
Reference is hereby made to that Loan and Security Agreement dated June 28,
2001 between the Bank and the Borrower (with the attached schedules and
exhibits, the "Loan Agreement") and the Loan Documents referred to therein,
including without limitation, that certain Promissory Note of the Borrower dated
June 28, 2001 in the principal amount of US$7,000,000 (the "Note") referred to
therein. Unless otherwise defined herein, capitalized terms used in this
Agreement shall have the same respective meanings as set forth in the Loan
Agreement.
2. Effective Date.
---------------
This Agreement shall become effective as of September 24, 2001 (the
"Effective Date"), provided that the Bank shall have received the following on
or before September 24, 2001 and provided further, however, in no event shall
this Agreement become effective until signed by an officer of the Bank in
California:
a. two copies of this Agreement, duly executed by all the Borrowers,
with the attached consent of Lionbridge Technologies, Inc. ("LTI"), duly
executed thereby;
b. an amended and restated promissory note in the form enclosed
herewith (the "Amended Note"), duly executed by the Borrowers;
c. a Perfection Certificate duly completed and executed by an
authorized officer of the New Borrower;
d. the results of a UCC search conducted with respect to the New
Borrower satisfactory to the Bank;
e. UCC financing statements duly executed by the New Borrower for
filing in appropriate filing offices; and
f. a certificate of the Secretary or other appropriate officer of
the New Borrower with respect to (i) its certificate of incorporation (as
certified as a recent date by the Secretary of State of its state of
incorporation); (ii) its corporate by-laws; (iii) incumbency of its authorized
officers; and (iv) authorizing resolutions of its board of directors.
By the signature of their authorized officers below, the Borrowers are
hereby representing as follows:
(a) Data Dimensions, Inc., a Delaware corporation ("DDI") was
acquired by [acquiring entity] on or about [date] in a transaction
summarized in Schedule A hereto (the "DDI Acquisition");
(b) Except with respect to any restrictions on acquisitions set forth
in the Loan Agreement, the Guarantee or the other Loan Documents, the DDI
Acquisition did not give rise to any Event of Default under the Loan
Agreement and no such Event of Default has occurred and is continuing under
the Loan Agreement (including without limitation pursuant to Section 7.1(q)
thereof as a result of any default on the part of LTI in satisfying its
obligations and covenants under the Guarantee);
(c) By virtue of the DDI Acquisition, DDI has become a direct wholly-
owned subsidiary of [direct parent], an indirect wholly-owned Subsidiary of
LTI, and an Affiliate of the Original Borrowers; and
(d) The Borrowers agree that, except as set forth in Schedule A, the
representation and warranties of the Original Borrowers set forth in the
Loan Documents (including those contained in the Loan Agreement as amended
by this Agreement are true and correct as of the Effective Date as if made
on such date and agree that the representations and warranties in the Loan
Agreement that refer or relate to the Borrowers are true and correct as to
the New Borrower as of the Effective Date.
Finally, the Borrowers (and LTI by signing below) agrees that, as of the
Effective Date, it has no defenses against its obligations to pay any amounts
under the Loan Agreement and the other Loan Documents.
3. Description of Change in Terms.
-------------------------------
As of the Effective Date, the Loan Agreement is modified in the following
respects:
a. The New Borrower shall for all purposes become a Borrower under
the Loan Agreement and the other Loan Documents (including, without limitation,
by granting a security interest in favor of the Bank pursuant to Section 2.1 of
the Loan Agreement) and all references to the Borrowers in the Loan Agreement
and the other Loan Documents shall include a reference to the New Borrower. The
New Borrower agrees to be bound by the terms and conditions of the Loan
Agreement and the other Loan Documents to which the Original Borrowers are a
party as fully as if it were an Original Borrower thereunder.
b. The Loan Agreement and the other Loan Documents are hereby
amended wherever necessary or appropriate to reflect the foregoing changes.
4. Consent and Waiver.
------------------
The Bank consents to the DDI Acquisition and waives any Default or Event of
Default that would otherwise arise from a breach of the restrictions on
acquisitions as set forth in the Loan Agreement, the Guarantee or any other Loan
Document as a result of the DDI Acquisition.
5. Continuing Validity.
--------------------
Upon the effectiveness hereof, each reference in each Loan Document to "the
Loan Agreement", "thereunder", "thereof", "therein", or words of like import
referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement, as amended hereby. Except as specifically set forth above, the Loan
Agreement shall remain in full force and effect and is hereby ratified and
confirmed. Each of the other Loan Documents is in full force and effect and is
hereby ratified and confirmed. The amendments set forth above (i) do not
constitute a waiver or modification of any term, condition or covenant of the
Loan Agreement or any other Loan Document, other than as expressly set forth
herein, and (ii) shall not prejudice any rights which the Bank may now or
hereafter have under or in connection with the Loan Agreement, as modified
hereby, or the other Loan Documents and shall not obligate the Bank to assent to
any further modifications.
6. Miscellaneous.
--------------
a. This Agreement may be signed in one or more counterparts each of
which taken together shall constitute one and the same document.
b. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
c. EACH 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 LENDER CANNOT AVAIL ITSELF OF THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS, THEN VENUE SHALL LIE IN SANTA XXXXX COUNTY, CALIFORNIA.
d. The Borrowers agree, on a joint and several basis, to promptly
pay on demand all costs and expenses of the Bank in connection with the
preparation, reproduction, execution and delivery of this letter amendment and
the other instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of Xxxxxxxx & Worcester, special
counsel for the Bank with respect thereto.
IN WITNESS WHEREOF, the Bank and the Borrowers have caused this Agreement
to be signed under seal by their respective duly authorized officers as of the
date set forth above.
Sincerely,
SILICON VALLEY EAST, a Division
of Silicon Valley Bank
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Senior Relationship Manager
SILICON VALLEY BANK
By: /s/
----------------------------------
Name:
Title:
(signed in Santa Clara, CA)
ORIGINAL BORROWERS:
INT'X.xxx, Inc.
By /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
Chief Executive Officer
International Language Engineering
Corporation
By /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
Chief Executive Officer
Harvard Translations, Inc.
By /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
President
Lionbridge Technologies California, Inc.
By /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
Chief Executive Officer
NEW BORROWER:
DATA DIMENSIONS, INC.
By: /s/ Xxxx X. Xxxxx
-------------------
Name: Xxxx X. Xxxxx
Title: President
