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SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Agreement")
is entered into as of December 28, 1998, by and among SILICON VALLEY BANK, a
California-chartered bank ("Bank") with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office
located at One Central Plaza, 00000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxx 00000 and VISUAL NETWORKS, INC., a Delaware corporation ("Company"),
VISUAL NETWORKS OPERATIONS, INC., a Delaware corporation ("Visual Operations"),
VISUAL NETWORKS INVESTMENTS, INC., a California corporation ("Visual
Investments"), VISUAL NETWORKS TECHNOLOGIES, INC., a California corporation
("Visual Technologies") and VISUAL NETWORKS OF TEXAS, LP, a Texas limited
partnership ("Visual Texas", together with Visual Operations, Visual
Investments, Visual Technologies and the Company being called collectively, the
"Borrowers" and each a "Borrower").
RECITALS.
The Company and Bank have entered into that certain Loan and
Security Agreement dated January 8, 1998 (as amended by this Agreement, the
"Loan Agreement"), pursuant to which Bank agreed to establish a revolving credit
facility (as the same may be increased from time to time, the "Committed
Revolving Line") in favor of the Company in the maximum principal amount of
Seven Million and No/100 Dollars ($7,000,000.00).
Visual Networks (Second amendment to Loan and Security Agreement)
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The Company has requested that the Bank revise certain provisions of
the Loan Agreement and the Bank has agreed to, on the condition, among others,
that this Agreement be executed and delivered by the Borrowers to Bank.
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrowers and Bank do hereby agree as follows:
1. Recitals. The parties hereto acknowledge and agree that the above
Recitals are true and correct in all material respects and that the same are
incorporated herein and made a part hereof by reference.
2. Exhibit. From and after the effective date of this Agreement,
Exhibit E to the Loan Agreement is replaced in its entirety with Exhibit E
attached hereto. The Borrowers shall execute and deliver to the Bank on the date
hereof their Second Amended and Restated Revolving Promissory Note in the form
of Exhibit E attached hereto and incorporated herein by reference (the
"Replacement Note") in substitution for and not satisfaction of, the issued and
outstanding Note; and the Replacement Note shall be the "Note" and/or the
"Revolving Promissory Note" for all purposes of the Loan Documents.
3. Conditions Precedent. This Agreement shall become effective on the
date Bank receives the following documents, each of which shall be satisfactory
in form and substance to Bank:
(a) The fully executed Replacement Note;
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(b) Proof that Borrowers have paid all costs and expenses to
Bank in connection with this Agreement, including but not limited to Bank's
reasonable attorneys fees; and
(c) Such other information, instruments, opinions, documents,
certificates and reports as Bank may deem necessary.
4. Representations. Each Borrower hereby confirms that the covenants
set forth in Section 5 of the Loan Agreement, are true and correct as of the
date hereof, and that no Event of Default has occurred or is continuing
immediately prior to or upon the execution of this Agreement.
5. Counterparts. This Agreement may be executed in any number of
duplicate originals or counterparts, each of which duplicate original or
counterpart shall be deemed to be an original and all taken together shall
constitute one and the same instrument.
6. Loan Documents; Governing Law; Etc. This Agreement is one of the
Loan Documents defined in the Loan Agreement and shall be governed and construed
in accordance with the laws of the State of Maryland. The headings and captions
in this Agreement are for the convenience of the parties only and are not a part
of this Agreement.
7. Acknowledgments. Each Borrower hereby confirms to Bank the
enforceability and validity of each of the Loan Documents. In addition, each
Borrower hereby agrees that the execution and delivery of this Agreement and the
terms and provisions, covenants or agreements contained in this Agreement shall
not in any manner release, impair, lessen, modify, waive or otherwise limit the
joint and several liability and obligations of Borrowers under the terms of any
of the Loan Documents, except as otherwise specifically set forth in this
Agreement. Each Borrower issues, ratifies and confirms the representations,
warranties and covenants contained in the Loan Documents.
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8. Modifications. This Agreement may not be supplemented, changed,
waived, discharged, terminated, modified or amended, except by written
instrument executed by the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
WITNESS/ATTEST: VISUAL NETWORKS, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
---------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WITNESS/ATTEST: VISUAL NETWORKS OPERATIONS, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
---------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WITNESS/ATTEST: VISUAL NETWORKS TECHNOLOGIES, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
---------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WITNESS/ATTEST: VISUAL NETWORKS INVESTMENTS, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
---------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
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WITNESS/ATTEST: VISUAL NETWORKS OF TEXAS, L.P.
By: Visual Networks of Texas
Operations, Inc., its general partner
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
---------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
SILICON VALLEY BANK
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Xxxxx Xxxxxxxxx
Assistant Vice President
SILICON VALLEY BANK
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
(Signed in Santa Clara, California))
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