EXHIBIT 99.3
SILICON VALLEY BUYER
SPECIALTY FINANCE DIVISION
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xx. 00000
(000) 000-0000 - Fax (000) 000-0000
MODIFICATION OF ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This Modification of Accounts Receivable Financing Agreement dated as of
June 27, 2003 (the "MODIFICATION AGREEMENT"), is entered into by and between
Silicon Valley Bank ("BANK") having a place of business at the address specified
above and Loudeye Corp., a Delaware corporation whose address is at 0000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxx, XX 00000 and with a FAX number of (000) 000-0000
("LOUDEYE") and Vidipax, Inc., a New York corporation with an address at 000
Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX ("VIDIPAX" and together with Loudeye,
"BORROWER").
R E C I T A L S:
A. The Borrower and Bank entered into that certain Accounts Receivable
Financing Agreement dated as of June 27, 2003, (the "LOAN AGREEMENT"), pursuant
to which Loan Agreement the Bank has agreed to make financial accommodations to
the Borrower.
B. At the present time the Borrower requests, and the Bank is agreeable to
making a one-time modification of the advance requirements of the Loan Agreement
pursuant to the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower and the Bank hereby agree as follows:
A G R E E M E N T S:
1. RECITALS. The foregoing Recitals are hereby made a part of this
Modification Agreement.
2. ONE TIME BORROWING REQUEST. The Bank hereby agrees that, upon receipt
by the Bank of a $5,000.00 loan modification fee (the "MODIFICATION FEE"),
Borrower may, at any time on or before July 7, 2003, provide a single request
for borrowing to the Bank in an amount not to exceed $500,000.00 ("BORROWING
REQUEST") without an accompanying Invoice Transmittal, and, provided that no
Event of Default then exists, the Bank agrees to advance up to 85% against the
amount of the Borrowing Request (the "DRAW"); provided, however, (i) the sum of
the Borrowing Request plus the aggregate amount of all Financed Receivables
shall not at any time exceed the Facility Amount and (ii) the amount of the Draw
plus all Advances shall not exceed (a) prior to July 7, 2003, $2,656,250.00 and
(b) on and after July 7, 2003, $2,500,000. Notwithstanding the provisions of the
Loan Agreement, the Finance Charge with respect to the Draw shall be equal to
(y) the Prime Rate plus 2% per annum times (z) the number of days the Draw
remains unpaid and outstanding. The Draw, including all Finance Charges accrued
thereon, shall be due and payable on or before July 7, 2003, and no further
advance requests shall be made by the Borrower without an accompanying Invoice
Transmittal. For the avoidance of doubt, the Borrower acknowledges and agrees
that the Borrower's obligation to repay the Draw constitutes an Obligation under
the Loan Agreement and is secured by the Borrower's assets pursuant to Section 8
of the Loan Agreement.
3. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into this
Modification Agreement, the Borrower hereby certifies, represents and warrants
to the Bank that:
3.1 Authorization. The Borrower is duly authorized to execute and
deliver this Modification Agreement and is and will continue to be duly
authorized to borrow monies under the Loan Agreement, as amended hereby, and to
perform its obligations under the Loan Agreement, as amended hereby.
3.2 No Conflicts. The execution and delivery of this Modification
Agreement and the performance by the Borrower of its obligations under the Loan
Agreement, as amended hereby, do not and will not conflict with any provision of
law or of the articles of organization or operating agreement of the Borrower or
of any agreement binding upon the Borrower.
3.3 Validity and Binding Effect. The Loan Agreement, as amended
hereby, is a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
3.4 Compliance with Loan Agreement. The representation and
warranties set forth in Section 6 of the Loan Agreement, as amended hereby, are
true and correct with the same effect as if such representations and warranties
had been made on the date hereof, with the exception that all references to the
financial statements shall mean the financial statements most recently delivered
to the Bank and except for such changes as are specifically permitted under the
Loan Agreement. In addition, the Borrower has complied with and is in compliance
with all of the covenants set forth in the Loan Agreement, as amended hereby,
including, but not limited to, those set forth in Section 6 thereof.
3.5 No Event of Default. As of the date hereof, no Event of Default
under Section 9 of the Loan Agreement, as amended hereby, or event or condition
which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default, has occurred or is continuing.
4. CONDITIONS PRECEDENT. This Modification Amendment shall become
effective as of the date above first written after receipt by the Bank of the
following documents:
4.1 Modification Agreement. This Modification Agreement executed by
the Borrower and the Bank.
4.2 Modification Fee. The Modification Fee.
4.3 Other Documents. Such other documents, certificates and/or
opinions of counsel as the Bank may request.
5. GENERAL.
5.1 Governing Law; Severability. This Modification Agreement shall
be construed in accordance with and governed by the laws of the state of
California. Wherever possible each provision of the Loan Agreement and this
Modification Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of the Loan Agreement and
this Modification Agreement shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of the Loan Agreement and this Modification Agreement.
5.2 Successors and Assigns. This Modification Agreement shall be
binding upon the Borrower and the Bank and their respective successors and
assigns, and shall inure to the benefit of the Borrower and the Bank and the
successors and assigns of the Bank.
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5.3 Continuing Force and Effect of Loan Documents and Guaranties.
Except as specifically modified or amended by the terms of this Modification
Agreement, all other terms and provisions of the Loan Agreement and the other
related loan documents are incorporated by reference herein, and in all
respects, shall continue in full force and effect. The Borrower, by execution of
this Modification Agreement, hereby reaffirms, assumes and binds itself to all
of the obligations, duties, rights, covenants, terms and conditions that are
contained in the Loan Agreement and the other related loan documents.
5.4 References to Loan Agreement. Each reference in the Loan
Agreement to "this Agreement", "hereunder", "hereof", or words of like import,
and each reference to the Loan Agreement in any and all instruments or documents
delivered in connection therewith, shall be deemed to refer to the Loan
Agreement, as amended hereby.
5.5 Expenses. The Borrower shall pay all costs and expenses in
connection with the preparation of this Modification Agreement and other related
loan documents, including, without limitation, reasonable attorneys' fees and
time charges of attorneys who may be employees of the Bank or any affiliate or
parent of the Bank. The Borrower shall pay any and all stamp and other taxes,
UCC search fees, filing fees and other costs and expenses in connection with the
execution and delivery of this Modification Agreement and the other instruments
and documents to be delivered hereunder, and agrees to save the Bank harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such costs and expenses.
5.6 Counterparts. This Modification Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Modification of Accounts Receivable Financing Agreement as of the date first
above written.
BORROWER:
LOUDEYE CORP,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx Xx.
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Name: Xxxxxx X. Xxxxx Xx.
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Title: Vice President and
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Chief Financial Officer
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VIDIPAX, INC.,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx Xx.
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Name: Xxxxxx X. Xxxxx Xx.
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Title: Vice President and
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Chief Financial Officer
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BANK:
SILICON VALLEY BANK
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Vice President
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