Exhibit 10.41
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, WAIVER,
AND FIFTH AMENDMENT TO NOTE
WHEREAS, Object Design, Inc. (the "Company") has entered into a certain
Loan and Security Agreement dated as of December 17, 1996 (as amended, the
"Agreement") with The First National Bank of Boston (now known as BankBoston,
N.A.)( the "Bank");
WHEREAS, the Company has requested, and the Bank has agreed, pursuant
to the terms hereof, to amend the Agreement by extending the Revolving Credit
Termination Date (as defined in the Agreement) from June 30, 1999 to December
31, 1999. Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
WHEREAS, the Company has requested, and the Bank has agreed, pursuant
to the terms hereof, to reduce the amount that can be borrowed under the secured
revolving credit facility from a current maximum of $2,000,000 to a maximum of
$450,000.
WHEREAS, the Company has requested, and the Bank has agreed, pursuant
to the terms hereof, to waive certain terms of the Agreement and, in
consideration for which, the Company has agreed to provide the Bank with cash
Collateral.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Company and the Bank hereby agree as follows:
I. Amendment to Agreement.
1. The definition of : "REVOLVING CREDIT TERMINATION DATE" set forth in
Section 1.1 of the Agreement is hereby amended and restated in its entirety as
follows:
"REVOLVING CREDIT TERMINATION DATE. December 31, 1999."
2. The definition of "COLLATERAL" set forth in Section 7.1 of the
Agreement is hereby amended by the addition of the letter (a) at the beginning
of the first paragraph of Section 7.1, and the addition, after "(collectively,
the `Collateral')," of the following:
(b) To further secure the payment and performance of all obligations
arising under any standby letter of credit, the Company hereby pledges and
grants to the Bank a first lien and continuing security interest in all cash
delivered to the Bank pursuant to this Agreement (the "CASH"), all certificates
of deposit purchased with the Cash, as set forth in Section 7.1( ) below, and in
all proceeds, additions, substitutions and accessions to and of the Cash and
such certificates of deposit (collectively, the "CASH COLLATERAL"). The Cash
Collateral at all times shall be in an amount equal to not less than one hundred
and five percent (105%) of the aggregate face amount of all outstanding
Obligations. At any time that the amount of Collateral shall fall below such
level, the Company immediately upon demand by the Bank shall deliver to the Bank
additional cash sufficient to correct such shortfall.
(c) COLLATERAL ACCOUNT. Unless otherwise instructed by the Company, as
set forth in Section 7.1 (d) herein, the Bank shall directly or through its
agents deposit all Cash in Money Market Fund (Institutional Prime Money Market
Fund (900) (the "ACCOUNT") with the Bank. The Account shall be in the name of
"BankBoston, N.A. as Collateral Pledgee for Object Design, Inc. Collateral
Account," shall bear the account number: 900-4000480732, and shall be
administered by the agents or employees of the Bank. Any interest that may
accrue on the Account shall be paid over to the Company from time to time, but
in no event more often than quarterly, provided that no Event of Default, as
defined in Section VIII, or any other event that, with the passing of time or
giving of notice or both, would constitute an Event of Default, shall have
occurred and be continuing. In addition, any cash in excess of any then
outstanding Obligations may be paid over to the Company at the Company's
request, but in no event more often than quarterly, provided that no Event of
Default, or any other event that, with the passing of time or giving of notice
or both, would constitute an Event of Default, shall have occurred and be
continuing. Any such accrued interest or cash that has not been paid over to the
Company shall be deemed to be part of the Collateral and subject to the Bank's
lien and continuing security interest as set forth herein.
1
(d) Certificates of Deposit. Upon written instructions from the
Company, and subject to the approval of the Bank, the Bank shall directly or
through its agents invest the Cash, any proceeds from a Certificate of Deposit,
as defined herein, or any portion thereof in a Bank certificate of deposit,
which shall have a maturity of not less than three months (a "Certificate of
Deposit"). Upon the maturity of any Certificate of Deposit, the Bank shall
deposit the proceeds of such Certificate of Deposit in the Account, unless
instructed by the Company as set forth in this Section 7.1."
II. WAIVER.
The Affirmative Covenants in Sections 5.7, 5.8, and 5.9, titled "Quick
Ratio," "Consolidated Total Liabilities to Consolidated Tangible Net Worth
Ratio" and "Profitability," respectively, are hereby waived through the end of
the Company's fiscal quarter ending December 31, 1999.
The foregoing waiver is limited to its express terms and shall not be
deemed to be a waiver of any other Event of Default which may have existed on or
prior to the date hereof or which may hereafter arise. Further the granting of
this waiver shall not be construed as a continuing waiver or waiver of any other
Event of Default under the Agreement or any other related documents.
III. AMENDMENT TO NOTE.
The Note is hereby amended by changing the date "June 30, 1999" in the
first and last sentences of the first paragraph thereof to "December 31, 1999."
IV. MISCELLANEOUS.
1. Other than as amended hereby, all terms and provisions of the
Agreement, the Note, and related documents are ratified and affirmed as of the
date hereof.
2. The Company represents and warrants to the Bank that, after giving
affect to this Amendment, no Default exists under the Agreement or related
documents. Upon receipt of a fully executed copy of this Amendment by the Bank,
this Amendment shall be deemed to be an instrument executed under seal to be
governed by the laws of The Commonwealth of Massachusetts effective as of the
date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment by
their duly authorized officers as of June 30, 1999.
BANKBOSTON, N.A.
(formerly known as "THE FIRST
NATIONAL BANK OF BOSTON")
By: /s/ Xxxx X. Xxxxxx
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Its: V.P. High Technology Group
Bank of Boston
OBJECT DESIGN, INC.
By: /s/ Xxxxx Xxxxxx
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Its: CFO
