SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.10
THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this
29th day of August, 2005, by and between Silicon Valley Bank (“Bank”) and A Smart Move
X.XX., a Colorado limited liability company (“Borrower”) whose address is 0000 X. Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
Recitals
A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of
April 26, 2005, as amended by that certain Loan Modification Agreement by and between Bank and
Borrower dated as of June 21, 2005 (as the same may from time to time be further amended, modified,
supplemented or restated, the “Loan Agreement”).
B. Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that Bank amend the Loan Agreement to (i) extend the availability
date under the Committed Equipment Line, and (ii) make certain other revisions to the Loan
Agreement as more fully set forth herein.
D. Bank has agreed to so amend certain provisions of the Loan Agreement, but only to the
extent, in accordance with the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have the
meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement.
2.1 Section 2.1.1 (Equipment Advances) and Section 2.3.1 (As to Equipment Advances).
Notwithstanding the terms and conditions stated in Section 2.1.1, Borrower shall be allowed one
additional Equipment Advance under the Committed Equipment Line (subject to any restrictions
related to the Equipment being financed, pursuant to Section 2.1.1), between the date of this
Amendment through September 9, 2005. Such additional Equipment Advance shall immediately amortize
and be payable in 36 equal payments of principal plus interest beginning September 30, 2005 and
continuing on the last day of each month thereafter. The final payment due on
August 31, 2008 shall include all outstanding principal and all accrued unpaid interest. Such
Equipment Advance shall accrue interest on the outstanding principal balance at a per annum rate
equal to the U.S. Treasury note per annum yield to maturity for a term of 36 months as quoted in
The Wall Street Journal, fixed as of the funding date of such Equipment Advance, plus 450 basis
points.
3. Limitation of Amendments.
3.1 The amendments set forth in Section 2, above, are effective for the purposes set forth
herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any
amendment, waiver or modification of any other term or condition of any Loan Document, or (b)
otherwise prejudice any right or remedy which Bank may now have or may have in the future under or
in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and
all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan
Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full
force and effect.
4. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower
hereby represents and warrants to Bank as follows:
4.1 Immediately after giving effect to this Amendment (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material respects as of the
date hereof (except to the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (b) no Event of Default has occurred and
is continuing;
4.2 Borrower has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to Bank on the Effective Date remain
true, accurate and complete and have not been amended, supplemented or restated and are and
continue to be in full force and effect;
4.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, have been duly
authorized;
4.5 The execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not
contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d)
the organizational documents of Borrower;
4.6 The execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, do not require any
order, consent, approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by any governmental or public body or authority, or subdivision
thereof, binding on either Borrower, except as already has been obtained or made; and
4.7 This Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to or affecting
creditors’ rights.
5. Counterparts. This Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.
6. Effectiveness. This Amendment shall be deemed effective upon the due execution and
delivery to Bank of this Amendment by each party hereto.
[Signature page follows.]
In Witness Whereof, the parties hereto have caused this Amendment to be duly executed
and delivered as of the date first written above.
| BANK | BORROWER | |||||||||
| Silicon Valley Bank | A Smart Move L.L.C. | |||||||||
By:
|
/s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxxx Xxxxxx | |||||||
Name:
|
Xxxxx Xxxxxxxx | Name: | Xxxxx Xxxxxx | |||||||
Title:
|
Senior
Vice President
|
Title: | Manager
|
|||||||
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER:
|
A Smart Move L.L.C. | |||||
LOAN OFFICER:
|
Xxxxx Xxxxxxxx | |||||
DATE:
|
August 29, 2005 | |||||
| Documentation Fee | $ | 250.00 | ||||
| TOTAL FEES DUE | $ | 250.00 | ||||
o A check for the total amount is attached.
o Debit DDA # for the total amount.
BORROWER:
Authorized Signer
|
(Date) | |||
SILICON VALLEY BANK |
||||
Loan Officer Signature
|
(Date) | |||
