EXHIBIT 99.21
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FIRST LOAN MODIFICATION AGREEMENT
This First Loan Modification Agreement (this "Loan Modification
Agreement') is entered into as of _______________, 2001, 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 Xxxxxx Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") and EXCHANGE APPLICATIONS, INC. d/b/a Xchange, Inc., Xxx Xxxxxxx Xxxxx,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and EXSTATIC SOFTWARE, INC.,
formerly known as Xxxx Xxxxxxx, Inc., 0000 Xxxxxxxxx Xxx Xxxxxxx, Xxxxxxxxxx
00000 (hereinafter, collectively, the "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 with Bank, evidenced by, among
other documents, (i) a certain Loan and Security Agreement dated as of April 25,
2001 (the "Loan Agreement"), (ii) a certain Intellectual Property Security
Agreement dated as of April 25, 2001 (the "IP Security Agreement"), and (iii) a
certain Pledge Agreement dated April 25, 2001 (the "Pledge Agreement").
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".
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement, the IP Security Agreement and the
Pledge 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. Modifications to Loan Agreement.
1. The Loan Agreement is hereby amended by deleting the following text
appearing in Section 2 of the Schedule to the Loan Agreement:
"INTEREST RATE (Section 1.2):
A rate equal to the "Prime Rate" in effect from time to time, plus
2.00% per annum. Interest shall be calculated on the basis of a 360-day
year for the actual number of days elapsed. "Prime Rate" means the rate
announced from time to time by Silicon as its "prime rate;" it is a
base rate upon which other rates charged by Silicon are based, and it
is not necessarily the best rate available at Silicon. The interest
rate applicable to the Obligations shall change on each date there is a
change in the Prime Rate."
and substituting the following text therefor:
"INTEREST RATE (Section 1.2):
Through June 30, 2001, a rate equal to the "Prime Rate" in effect from
time to time, plus 2.00% per annum. From July 1, 2001 and thereafter, a
rate equal to the "Prime Rate" in effect from time to time, plus 2.50%
per annum. Interest shall be calculated on the basis of a 360-day year
for the actual number of days elapsed. "Prime Rate" means the rate
announced from time to time by Silicon as its "prime rate;" it is a
base rate upon which other rates charged by Silicon are based, and it
is not necessarily the best rate available at
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Silicon. The interest rate applicable to the Obligations shall change
on each date there is a change in the Prime Rate."
2. The Loan Agreement is hereby amended by deleting the following text
appearing in Section 5(a) of the Schedule to the Loan Agreement:
"A. EBITDA: THE BORROWER SHALL SUFFER MAXIMUM LOSS OR MAINTAIN A
MINIMUM PROFIT PER MONTH AND PER QUARTER IN ACCORDANCE WITH THE
SCHEDULE PROVIDED BELOW:
April 2001 - ($5,500,000) October 2001 - ($5,750,000)
May 2001 - ($3,000,000) November 2001 - ($2,150,000)
June 2001 - $5,000,000 December 2001 - $8,000,000
2nd Quarter 2001 4th Quarter 2001
Maximum Loss ($2,600,000) Minimum Profit $1,700,000
July 2001 - ($6,250,000) January 2002 - ($5,500,000)
August 2001 - ($2,500,000) February 2002 - ($2,000,000)
September 2001 - $7,750,000 March 2002 - $8,500,000
3rd Quarter 2001 1st Quarter 2002
Minimum Profit - $250,000 Minimum Profit - $2,000,000"
and substituting the following text therefor:
"A. EBITDA: THE BORROWER SHALL SUFFER MAXIMUM LOSS OR MAINTAIN A
MINIMUM PROFIT PER MONTH AND PER QUARTER IN ACCORDANCE WITH THE
SCHEDULE PROVIDED BELOW:
April 2001 - ($5,500,000) October 2001 - ($3,000,000)
May 2001 - ($3,000,000) November 2001 - ($1,750,000)
June 2001 - $5,000,000 December 2001 - $3,250,000
2nd Quarter 2001
Maximum Loss ($2,600,000) 4th Quarter 2001
July 2001 - ($4,500,000) Minimum Profit - $1.00
August 2001 - ($1,750,000)
September 2001 - $3,000,000 Each Quarter thereafter
3rd Quarter 2001 Minimum Profit - $1,000,000"
Maximum Loss - ($2,000,000)
B. Acknowledgment of Default; Forebearance by Bank.
1. Borrower acknowledges that it is currently in default under the Loan
Agreement by its failure to comply with (a) the monthly and quarterly
EBITDA covenants for June, 2001 set forth in Section 5(a) of the
Schedule to the Loan Agreement and (b) the minimum additional equity
covenant set forth in Section 5 (c) of the Schedule to the Loan
Agreement. Bank, however, hereby agrees to forbear from exercising its
rights and remedies with respect to such defaults until the earlier to
occur of (the "Forbearance Date"): (i) an Event of Default under the
Loan Agreement (other than the failure of the Borrower to comply with
the above covenant) or (ii) September 30, 2001. Borrower hereby
acknowledges and agrees that except as specifically provided herein,
nothing in this section or anywhere in this Loan Modification Agreement
shall be deemed or otherwise construed as a waiver by Bank of any of
its rights and remedies pursuant to the Existing Loan Documents,
applicable law or otherwise.
2. Provided that Borrower receives both (i) on or before July 31, 2001, a
minimum of an additional $5,000,000 in cash after the date hereof from
the sale and issuance by the
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Borrower of equity securities or subordinated debt (the "First Equity
Event") and (ii) on or before the Forbearance Date, a minimum of an
additional $2,500,000 (in addition to the First Equity Event and all
prior equity issued) in cash the sale and issuance by the Borrower of
equity securities or subordinated debt, Bank will agree to waive, at
such time, Borrower's existing defaults under Sections 5(a) and 5(c) of
the Schedule to the Loan Agreement.
4. NO AVAILABILITY. Borrower acknowledges and agrees that, notwithstanding
anything to the contrary contained in the Loan Agreement or any of the Existing
Loan Documents, Borrower has no ability to request additional Loans under the
Loan Agreement and Bank has no obligation to make any further Loans thereunder
until and unless Borrower timely complies with the First Equity Event.
Notwithstanding the foregoing, Bank may, at its option and at any time, make
additional Loans (or other advances to or on behalf of Borrower, as set forth in
the Loan Agreement) to Borrower, but any such Loans shall at Bank's sole and
exclusive discretion in each instance. After the occurrence of the First Equity
Event, Borrower may request Loans under the Loan Agreement and Bank may, in its
commercially reasonable discretion, make Loans to Borrower.
5. INSIGHT CAPITAL. Notwithstanding anything to the contrary contained in the
Existing Loan Documents, Bank hereby consents to a junior and subordinate lien
granted or to be granted to InSight Capital; provided, however, such consent is
conditioned upon Bank, Borrower and Insight Capital executing a Subordination
Agreement acceptable in all respects to Bank.
6. FEES. Borrower shall pay to Bank a modification fee equal to Twenty-Five
Thousand Dollars ($25,000.00), 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.
7. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower hereby
ratifies, confirms and reaffirms, all and singular, the terms and conditions of
the IP Security Agreement and acknowledges, confirms and agrees that the IP
Security Agreement contains an accurate and complete listing of all Intellectual
Property Collateral as defined in the IP Security Agreement.
8. ADDITIONAL COVENANTS: RATIFICATION OF PERFECTION CERTIFICATE. Borrower shall
not, without providing the Bank with thirty (30) days prior written notice: (i)
relocate its principal executive office or add any new offices or business
locations or keep any Collateral in any additional locations, or (ii) change its
jurisdiction of organization, or (iii) change its organizational structure or
type, (iv) change its legal name, or (v) change any organizational number (if
any) assigned by its jurisdiction of organization. In addition, the Borrower
hereby certifies that no Collateral is in the possession of any third party
bailee (such as at a warehouse). In the event that Borrower, after the date
hereof, intends to store or otherwise deliver the Collateral to such a bailee,
then Borrower shall first receive, the prior written consent of Bank and such
bailee must acknowledge in writing that the bailee is holding such Collateral
for the benefit of Bank. Borrower hereby ratifies, confirms and reaffirms, all
and singular, the terms and disclosures contained in a certain Perfection
Certificate dated as of April 24, 2001 between Borrower and Bank, and
acknowledges, confirms and agrees the disclosures and information above Borrower
provided to Bank in the Perfection Certificate has not changed, as of the date
hereof.
9. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file financing
statements without notice to Borrower, with all appropriate jurisdictions, as
Bank deems appropriate, in order to further perfect or protect Bank's interest
in the Collateral.
10. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
11. 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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12. 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.
13. 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.
14. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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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.
EXCHANGE APPLICATIONS, INC. SILICON VALLEY BANK, d/b/a
SILICON VALLEY EAST
By______________________________ By___________________________
President or Vice President Title________________________
By______________________________
Secretary or Ass't Secretary
EXSTATIC SOFTWARE, INC., formerly known as
XXXX XXXXXXX, INC.
By______________________________
President or Vice President
By______________________________
Secretary or Ass't Secretary
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The undersigned each ratify confirm and reaffirm, all and singular, the
terms and conditions of certain Unconditional Guaranties each dated April 24,
2001 (collectively, the "Guaranty") and a certain Security Agreement dated April
24, 2001 (the "Security Agreement") and acknowledge, confirm and agree that the
Guaranty and the Security Agreement remain in full force and effect and shall in
no way be limited by the execution of this Loan Modification Agreement, or any
other documents, instruments and/or agreements executed and/or delivered in
connection herewith. Further, the undersigned each hereby grant to Bank, and
reaffirm the grant to Bank of, a continuing security interest in and to the
property listed on Exhibit A to the Security Agreement to secure the
Obligations.
ACTION SYSTEMS, INC.
By:___________________________
Name:
Title:
CUSTOMER ANALYTICS HOLDINGS, INC.
By:___________________________
Name:
Title:
CUSTOMER ANALYTICS, INC.
By:___________________________
Name:
Title:
EXCHANGE APPLICATIONS SECURITIES CORPORATION
By:___________________________
Name:
Title:
KNOWLEDGE STREAM PARTNERS, INC.
By:___________________________
Name:
Title:
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FIRST LOAN MODIFICATION AGREEMENT - EXIM
This First Loan Modification Agreement (this "Loan Modification
Agreement') is entered into as of _______________, 2001, 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 EXCHANGE APPLICATIONS, INC. d/b/a Xchange, Inc., Xxx Xxxxxxx Xxxxx,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and EXSTATIC SOFTWARE, INC.,
formerly known as Xxxx Xxxxxxx, Inc., 0000 Xxxxxxxxx Xxx Xxxxxxx, Xxxxxxxxxx
98105(hereinafter, collectively, the "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 evidenced by, among other
documents, (i) a certain Export-Import Bank Loan and Security Agreement dated
April 25, 2001 between Borrower and Bank (the "Loan Agreement") and (ii) a
certain Note dated April 25, 2001 made by Borrower payable to Bank in the
original principal amount of One Million Five Hundred Thousand Dollars
($1,500,000.00) (the "Note"). 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".
2. DESCRIPTION OF COLLATERAL. 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.
Modification to Loan Agreement.
The Loan Agreement is hereby amended by deleting the following text
appearing in Section 2.3 (a) of the Loan Agreement:
"(a) Interest Rate. Except as set forth in Section 2.3(b), or as
specified to the contrary in any Loan Document, any Advances under this
Exim Agreement shall accrue interest on the outstanding principal
balance at a per annum rate equal to the aggregate of the Prime Rate,
plus two percent (2.00%).
"
and substituting the following text therefor:
"(a) Interest Rate. Except as set forth in Section 2.3(b), or as
specified to the contrary in any Loan Document, any Advances under this
Exim Agreement shall accrue interest on the outstanding principal
balance at a per annum rate equal to the aggregate of the Prime Rate,
plus two and one half percent (2.50%)."
4. NO AVAILABILITY. Borrower acknowledges and agrees that, notwithstanding
anything to the contrary contained in the Loan Agreement or any of the Existing
Loan Documents, Borrower has no ability to request additional Advances under the
Loan Agreement and Bank has no obligation to make any further Advances
thereunder until and unless Borrower timely complies with the First Equity Event
(as defined in a certain First Loan
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Modification Agreement of even date herewith regarding the Domestic Agreement).
Notwithstanding the foregoing, Bank may, at its option, make additional Advances
to Borrower, but any such Advances shall at Bank's sole and exclusive discretion
in each instance.
5. INSIGHT CAPITAL. Notwithstanding anything to the contrary contained in the
Exiting Loan Documents, Bank hereby consents to the junior and subordinate lien
granted or to be granted to InSight Capital; provided, however, such consent is
conditioned upon Bank, Borrower and Insight Capital executing a Subordination
Agreement acceptable in all respects to Bank.
6. ADDITIONAL COVENANTS: RATIFICATION OF PERFECTION CERTIFICATE. Borrower shall
not, without providing the Bank with thirty (30) days prior written notice: (i)
relocate its principal executive office or add any new offices or business
locations or keep any Collateral in any additional locations, or (ii) change its
jurisdiction of organization, or (iii) change its organizational structure or
type, (iv) change its legal name, or (v) change any organizational number (if
any) assigned by its jurisdiction of organization. In addition, the Borrower
hereby certifies that no Collateral is in the possession of any third party
bailee (such as at a warehouse). In the event that Borrower, after the date
hereof, intends to store or otherwise deliver the Collateral to such a bailee,
then Borrower shall first receive, the prior written consent of Bank and such
bailee must acknowledge in writing that the bailee is holding such Collateral
for the benefit of Bank. Borrower hereby ratifies, confirms and reaffirms, all
and singular, the terms and disclosures contained in a certain Perfection
Certificate dated as of April 24, 2001 between Borrower and Bank, and
acknowledges, confirms and agrees the disclosures and information above Borrower
provided to Bank in the Perfection Certificate has not changed, as of the date
hereof.
7. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file financing
statements without notice to Borrower, with all appropriate jurisdictions, as
Bank deems appropriate, in order to further perfect or protect Bank's interest
in the Collateral.
8. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
9. 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.
10. 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.
11. 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.
12. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank.
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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.
EXCHANGE APPLICATIONS, INC. SILICON VALLEY BANK, d/b/a
SILICON VALLEY EAST
By______________________________ By___________________________
President or Vice President Title________________________
By______________________________
Secretary or Ass't Secretary
EXSTATIC SOFTWARE, INC., formerly known as
XXXX XXXXXXX, INC.
By_______________________________
President or Vice President
By_______________________________
Secretary or Ass't Secretary
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The undersigned each ratify confirm and reaffirm, all and singular, the
terms and conditions of certain Unconditional Guaranties each dated April 24,
2001 (collectively, the "Guaranty") and a certain Security Agreement dated April
24, 2001 (the "Security Agreement") and acknowledge, confirm and agree that the
Guaranty and the Security Agreement remain in full force and effect and shall in
no way be limited by the execution of this Loan Modification Agreement, or any
other documents, instruments and/or agreements executed and/or delivered in
connection herewith. Further, the undersigned each hereby grant to Bank, and
reaffirm the grant to Bank of, a continuing security interest in and to the
property listed on Exhibit A to the Security Agreement to secure the
Obligations.
ACTION SYSTEMS, INC.
By:___________________________
Name:
Title:
CUSTOMER ANALYTICS HOLDINGS, INC.
By:___________________________
Name:
Title:
CUSTOMER ANALYTICS, INC.
By:___________________________
Name:
Title:
EXCHANGE APPLICATIONS SECURITIES CORPORATION
By:___________________________
Name:
Title:
KNOWLEDGE STREAM PARTNERS, INC.
By:___________________________
Name:
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