Exhibit 10.44
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement (this "Loan Modification Agreement') is
entered into as of December 6, 2002, by and between SILICON VALLEY 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 One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and MOLDFLOW CORPORATION, a Delaware corporation with its chief
executive office located at 000 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx
01778("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other
indebtedness and obligations which may be owing by Borrower to Bank, Borrower is
indebted to Bank pursuant to a loan arrangement dated as of November 13, 2001,
evidenced by, among other documents, a certain Loan Agreement dated as of
November 13, 2001, between Borrower and Bank, as amended by certain Loan
Modification Agreements dated June 11, 2002 and June 26, 2001,(as amended, the
"Loan Agreement"). The Loan Agreement established a working capital line of
credit in favor of Borrower in the maximum principal amount of Five Million
Dollars ($5,000,000.00) (the "Committed Revolving Line"). Capitalized terms used
but not otherwise defined herein shall have the same meaning as in the Loan
Agreement.
Hereinafter, all indebtedness and obligations owing by Borrower to Bank shall be
referred to as the "Obligations".
Hereinafter, the Loan Agreement, together with all other documents evidencing
the Obligations shall be referred to as the "Existing Loan Documents".
2. DESCRIPTION OF CHANGE IN TERMS.
A. Modifications to Loan Agreement.
1. The Loan Agreement shall be amended by deleting the following
definition appearing in Section 12.1 thereof:
""Maturity Date" with respect to the Committed Line is
one day prior to the one (1) year anniversary of the
Closing Date."
and inserting in lieu thereof the following:
""Maturity Date" means December 5, 2003."
2. The Loan Agreement shall be amended by deleting the following
provision appearing in Section 5.7 thereof:
"PROFITABILITY. Borrower will have a minium net profit of $1 for each
fiscal quarter except Borrower may suffer losses not to exceed
$500,000.00 for the quarters ending June 30, 2002 and September 30, 2002.
For calculation purposes, Profitability shall be defined as Borrower's
net income after taxes, but prior to depreciation, amortization and
non-cash restructuring expenses. For purposes of this covenant,
restructuring expenses shall be deducted from net profit when cash
payments are made in respect to such expenses."
and inserting in lieu thereof the following:
"PROFITABILITY. Borrower shall have quarterly net losses not to exceed
Five Hundred
Thousand Dollars ($500,000.00) for Borrower's fiscal quarters ending
December 31, 2002, March 31,2003, June 30, 2003, September 30, 2003, and
December 31, 2003. For calculation purposes, Profitability shall be
defined as Borrower's net income after taxes, but prior to depreciation,
amortization and non-cash restructuring expenses. For purposes of this
covenant, restructuring expenses shall be deducted from net profit when
cash payments are made in respect to such expenses."
3. The Compliance Certificate appearing as EXHIBIT C to the Loan
Agreement is hereby replaced with the Compliance Certificate attached as EXHIBIT
A hereto.
3. FEES. Borrower shall pay to Bank a modification fee equal to Twelve Thousand
Five Hundred Dollars ($12,500.00), 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.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
5. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of the Existing Documents, and confirms that
the indebtedness includes, without limitation, the Obligations.
6. 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.
7. 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.
8. 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).
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:
MOLDFLOW CORPORATION SILICON VALLEY BANK, doing business as
SILICON VALLEY EAST
By:/s/ Xxxxxxx X. Xxxxxx XxxXxxxxxx By: /s/ Xxxx Xxxxxxxxx
---------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxxx XxxXxxxxxx Name: Xxxx Xxxxxxxxx
Title:EVP Finance and CFO Title: Vice President
SILICON VALLEY BANK
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Loan Admin. Team Leader
(signed in Santa Xxxxx County,
California)
