AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT
10.1
AMENDMENT
TO
AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
This
Amendment to Amended and Restated Loan and Security Agreement (this “Amendment”)
is entered into this 29th day of June, 2006, by and between SILICON
VALLEY BANK
(“SVB”),
in its capacity as Agent (“Agent”) and as a lender, KEYBANK
NATIONAL ASSOCIATION
(“Key”;
and collectively with SVB, the “Lenders”) and PERFICIENT,
INC.,
PERFICIENT GENESIS, INC., PERFICIENT CANADA CORP., PERFICIENT MERITAGE, INC.,
PERFICIENT ZETTAWORKS, INC., PERFICIENT IPATH, INC. and PERFICIENT VIVARE,
INC.
(collectively, the “Existing Borrowers”) and PERFICIENT BAY STREET, LLC and
PERFICIENT INSOLEXEN, LLC (collectively, the “New Borrowers;” together with the
Existing Borrowers, the “Borrowers” and each, individually, a “Borrower”),
jointly and severally, each with its principal place of business at 1120 S.
Capital of Xxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx, Xxxxx
00000.
RECITALS
A. Lenders
and the Existing Borrowers have entered into that certain Amended and Restated
Loan and Security Agreement dated as of June 3, 2005 (as the same may from
time
to time be further amended, modified, supplemented or restated, the “Loan
Agreement”).
B. Lenders
have extended credit to the Existing Borrowers, and wish to extend credit to
the
New Borrowers, for the purposes permitted in the Loan Agreement.
C. Borrowers
have requested that Lenders amend the Loan Agreement to (i) increase the amount
available to be borrowed under the Acquisition Line, (ii) increase the amount
available to be borrowed under the Revolving Line, and (iii) make certain other
revisions to the Loan Agreement as more fully set forth herein.
D. Lenders
have 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 All
references in the Loan Documents to a “Borrower” or to “Borrowers” shall mean
and include each New Borrower.
2.2 Section
2.1.1 (Revolving Advances).
Section
2.1.1(a) hereby is amended and restated in its entirety and replaced with the
following:
“(a) Subject
to the terms and conditions of this Agreement, each Lender shall, pro rata
according to that Lender’s Pro Rata Share of the Committed Revolving Line, make
Advances not exceeding (i) the lesser of (A) the Committed Revolving Line or
(B)
the Borrowing Base, minus (ii) the outstanding principal balance of the
Advances, the amount of all outstanding Letters of Credit (including drawn
but
unreimbursed Letters of Credit) and all unpaid amounts utilized for Cash
Management Services. Amounts borrowed under this Section may be repaid and
reborrowed during the term of this Agreement.”
2.3 Section
2.1.1 (Revolving Advances).
Section
2.1.1(b) hereby is amended and restated in its entirety and replaced with the
following:
“(b) To
obtain
an Advance, Borrowers must deliver to Agent by facsimile by 12:00 p.m.
California time at least one (1) Business Day before the Advance is to be made,
the Payment/Advance Form attached as Exhibit B (a “Payment/Advance Form”). Agent
shall notify Lenders of Borrowers’ request for such Advance on the date of
Agent’s receipt of such request. Not later than 12:00 p.m., California time, on
the date specified for any Advance (which must be a Banking Day), each Lender
shall make its Pro Rata Share of the Advance in immediately available funds
available to the Agent at the Agent's office. If Borrowers satisfy the
conditions for an Advance specified herein and Lenders deliver the requested
funds to Agent, Agent will disburse such Advance by internal transfer to a
Borrower’s deposit account with SVB on the Funding Date. Lenders may make
Advances under this Agreement without instructions if the Advances are necessary
to meet Obligations which have become due.”
2.4 All
references to “SVB” in Section 2.1.1(c) hereby are amended and replaced with
“Lenders”.
2.5 Section
2.1.1 (Revolving Advances).
Section
2.1.1(d) hereby is amended and restated in its entirety and replaced with the
following:
“(d) Lenders’
obligation to make Advances hereunder will terminate if, in Agent’s good faith
judgment (in consultation with the Lenders), there has been a material adverse
change in the general affairs, management, results of operation, condition
(financial or otherwise) or the prospect of repayment of the Obligations, or
there has been any material adverse deviation by Borrowers from the most recent
business plan of Borrowers presented to and accepted by Agent prior to the
execution of this Agreement.”
2
2.6 Section
2.1.3 (Acquisition Term Loan Facility). Section
2.1.3(a) hereby is amended and restated in its entirety and replaced with the
following:
“(a) Subject
to the terms and conditions of this Agreement, each Lender shall, pro rata
according to that Lender’s Pro Rata Share of the Committed Term Loan Commitment,
lend to Borrowers, from time to time prior to the Term Loan Commitment
Termination Date, advances (each a “Term Loan Advance” and collectively the
“Term Loan Advances”) in an aggregate amount not to exceed the Committed Term
Loan Line. When repaid, the Term Loan Advances may not be re-borrowed. The
proceeds of the Term Loan Advances will be sued solely to fund Permitted
Acquisitions. Each Term Loan Advance shall be considered a promissory note
evidencing the amounts due hereunder for all purposes. Lenders’ obligations to
lend hereunder shall terminate on the earlier of (i) the occurrence and
continuance of an Event of Default, or (ii) the Term Loan Commitment Termination
Date.”
2.7 Section
2.1.3 (Acquisition Term Loan Facility). The
second, fourth and fifth sentences of Section 2.1.3(b) are amended in their
entirety and replaced with the following:
“(b) At
least
three (3) Business Days before the Funding Date, Agent shall notify Lenders
of
Borrowers’ request for such Term Loan Advance. … Not later than 12:00 p.m.,
California time, on the date specified for any Term Loan Advance (which must
be
a Banking Day), each Lender shall make its Pro Rata Share of the Term Loan
Advance in immediately available funds available to the Agent at the Agent's
office. If Borrowers satisfy the conditions for a Term Loan Advance specified
herein and Lenders deliver the requested funds to Agent, Agent will disburse
such Term Loan Advance by internal transfer to a Borrower’s deposit account with
SVB on the Funding Date. Term Loan Advances for any Permitted Acquisition may
not exceed in the aggregate fifty percent (50%) of the Total Acquisition Cost
for such Permitted Acquisition (which, through September 1, 2006, shall have
closed no earlier than June 3, 2005 and which, thereafter, shall have closed
no
earlier than 90 days prior to the date of the request for the corresponding
Term
Loan Advance).”
2.8 Section
2.1.3 (Acquisition Term Loan Facility). Section
2.1.3(c) is amended in its entirety and replaced with the
following:
“(c) Lenders’
obligations to lend the undisbursed portion of the Committed Term Loan Line
will
terminate if, in Agent’s good faith judgment (in consultation with the Lenders),
there has been a material adverse change in the general affairs, management,
results of operation, condition (financial or otherwise) or the prospect of
repayment of the Obligations, or there has been any material adverse deviation
by Borrowers from the most recent business plan of Borrowers presented to and
accepted by Agent and the Lenders prior to the execution of this agreement.”
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2.9 Section
2.2 (Overadvances).
All
references to “SVB” in Section 2.2 are amended and replaced with
“Lenders”.
2.10 Section
2.3.2 (Committed Revolving Line).
The
first sentence of Section 2.3.2(a) is amended in its entirety and replaced
with
the following:
“Advances
under the Committed Revolving Line accrue interest on the outstanding principal
balance thereof at a per annum rate equal to the Prime Rate.”
In
addition, all references to “SVB” in Section 2.3.2(b) are amended and replaced
with “Lenders.”
2.11 Section
2.3.3 (Term Loan Payments).
Section
2.3.3(a) is amended in its entirety and replaced with the
following:
“(a) Principal
and Interest Payments On Payment Dates.
Borrowers will repay the Term Loan Advances on the terms provided herein and
in
the Loan Supplement. Borrowers will make payments to Agent, for the benefit
of
Lenders, monthly of principal in advance and/or accrued interest, as set forth
herein and in the Loan Supplement, for each Term Loan Advance (collectively,
“Scheduled Payments”), commencing on the first day of the next month following
the Funding Date with respect to such Term Loan Advance and continuing
thereafter during the Repayment Period on the first day of each calendar month
(each a “Payment Date”). On each Payment date during the Interest Only Period,
Borrowers shall make payments to Agent, for the benefit of Lenders, of accrued
but unpaid interest only for each Term Loan Advance. Beginning on the first
Payment Date following the Interest Only Period and continuing thereafter during
the Repayment Period, Borrowers will pay to Agent, for the benefit of Lenders,
thirty-six (36) equal installments of principal and all accrued interest for
each Term Loan Advance (collectively with the interest-only payments required
in
the preceding sentence, each a “Term Loan Payment”). Borrowers’ final Term Loan
Payment for each Term Loan Advance shall be due and payable to Agent, for the
benefit of Lenders, on the Term Loan Maturity Date for such Term Loan Advance
and shall include all outstanding principal and all accrued but unpaid interest
for such Term Loan Advance. Payments received after 12:00 noon California time
are considered received at the opening of business on the next Business Day.
A
Term Loan Advance may only be prepaid in accordance with Sections 2.3.3(c)
and
2.3.3(d).”
4
2.12 Section
2.3.3 (Term Loan Payments).
The
first sentence of Section 2.3.3(b) is amended in its entirety and replaced
with
the following:
(b) Interest
Rate.
Borrowers will pay interest on the Payment Dates (as described above) at the
per
annum rate of interest equal to the Basic Rate determined by Agent, as of the
Funding Date for each Term Loan Advance in accordance with the definition of
the
Basic Rate.
2.13 Section
2.3.3 (Term Loan Payments).
All
references to “Key” in Section 2.3.3(c) and (d) are amended and replaced with
“Lenders”.
2.14 Section
2.4 (Fees).
Section
2.4(a) is amended in its entirety and replaced with the following:
“(a) Term
Loan Facility Fee.
Borrowers will pay to Agent, for the pro rata benefit of Lenders, a fully
earned, non-refundable term loan facility fee in the amount of $37,500, due
on
the date that Borrowers execute and deliver this Amendment to
Agent.”
2.15 Section
2.4 (Fees).
Section
2.4(b) is amended in its entirety and replaced with the following:
“(b) Committed
Revolving Line Facility Fee.
Borrowers will pay to Agent, for the pro rata benefit of Lenders, (a) a fully
earned, non-refundable committed revolving line facility fee in the amount
of
$12,500 due on the date that Borrowers execute and deliver this Amendment to
Agent, and (b) an annual facility fee on the Committed Revolving Line in the
amount of $31,250 shall be payable on each anniversary of the date of this
Amendment so long as Lenders have a commitment to make Advances
hereunder;”
2.16 Section
2.4 (Fees). The
following provision is inserted after Section 2.4(b) and before Section 2.4(c)
as a new Section 2.4(c)(X):
“(X) Term
Loan Facility Usage Fee.
Borrowers will pay to Agent, for the pro rata benefit of Lenders, a usage fee,
payable quarterly in arrears within 15 days of the end of each calendar quarter,
in an amount equal to the product of .03% times the per quarter average unused
portion of the Acquisition Term Loan Facility;”
2.17 Section
2.4 (Fees).
The
title and first sentence of Section 2.4(c) as in effect prior to the date of
this Amendment is amended in its entirety and replaced with the following
Section 2.4(c)(Y):
“(Y) Committed
Revolving Line Facility Usage Fee.
Borrowers will pay to Agent, for the pro rata benefit of Lenders, a usage fee,
payable quarterly in arrears within 15 days of the end of each calendar quarter,
in an amount equal to the product of .03% times the per quarter average Unused
Balance.”
5
2.18 Section
2.4 (Fees). The
following provision is inserted as new Section 2.4(e):
“(e) “Pro
Rata” Fees.
All
references in this Section 2.4 to the payment of fees by Agent, “for the ‘pro
rata’ benefit of Lenders,” shall exclude from the “pro rata” calculation the
“Existing Facilities” owing to SVB, separately, as described in Section 2.1.4 of
the Agreement (the “Existing Facilities”). For clarification, the Existing
Facilities shall not be included as part of SVB’s Pro Rata Share of the
Committed Revolving Line or the Committed Term Loan Line, for purposes of
determining the amount of fees to which SVB is entitled hereunder.
2.19 Section
2.6 (Obligations of Lenders). Section
2.6 is amended in its entirety and replaced with the following:
“2.6 Obligations
of Lenders; Agent’s Right to Assume Funds Available for
Advances.
Each
Lender’s obligations hereunder, including, but not limited to, each Lender’s
obligation to make Credit Extensions, are several, but not joint. Unless the
Agent shall have been notified by any Lender no later than 10:00 a.m. on the
Banking Day of the proposed funding by the Agent of any Loan that such Lender
does not intend to make available to the Agent such Lender's portion of the
total amount of such Loan, the Agent may assume that such Lender has made such
amount available to the Agent on the date of the Loan and the Agent may, in
reliance upon such assumption, make available to Borrowers a corresponding
amount. If the Agent has made funds available to Borrowers based on such
assumption and such corresponding amount is not in fact made available to the
Agent by such Lender, the Agent shall be entitled to recover such corresponding
amount on demand from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent
promptly shall notify Borrowers and Borrowers shall pay such corresponding
amount to the Agent. The Agent also shall be entitled to recover from such
Lender interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Agent to Borrowers
to
the date such corresponding amount is recovered by the Agent, at a rate per
annum equal to the daily Federal Funds Rate. Nothing herein shall be deemed
to
relieve any Lender from its obligation to fulfill its Pro Rata Share or to
prejudice any rights which the Agent or Borrowers may have against any Lender
as
a result of any default by such Lender hereunder.”
2.20 Section
6.7 (Financial Covenants). New
Section 6.7(d) hereby is added as follows:
“(d) Changes
to GAAP Accounting Regulations.
Any
changes to GAAP accounting regulations including, but not limited to, changes
to
Statement of Financial Accounting Standards No. 141, Business
Combinations,
shall
not impact the calculations for purposes of meeting the Financial Covenants
or
the Financial Covenants shall be automatically amended upon the effective date
of such a new accounting pronouncement so as to nullify the impact of such
a new
accounting pronouncement on the calculation of the Financial
Covenants.”
6
2.21 Section
6.12 (Permitted Acquisitions Financial Covenant). The
first
sentence of Section 6.12 is amended in its entirety and replaced with the
following:
“As
soon
as available, but no later than thirty (30) days after the last day of the
month
during which the Acquisition Covenant Date occurs, Borrowers shall deliver
to
Agent, with respect to each Permitted Acquisition in connection with which
any
Lender has made a Credit Extension hereunder, evidence satisfactory to Agent
that as of the Acquisition Covenant Date, the Person acquired in such Permitted
Acquisition shall have a minimum Net Income, based on the annualized last
completed fiscal quarter (prior to the closing of the Permitted Acquisition)
of
the Person’s historical financial statements, of no less than one dollar
($1.00), after giving effect to Pro Forma Adjustments.”
2.22 Exhibit
C (Borrowing
Base Certificate).
The
reference in Exhibit C to the Commitment Amount of “$15,000,000” shall mean and
refer to $25,000,000.”
2.23 Section
13 (Definitions).
The
following terms and their respective definitions set forth in Section
13.1
are
added and/or amended in their entirety and replaced with the following:
“Acquisition
Covenant Date” means
the
date ninety (90) days after any Permitted Acquisition Date (or September 1,
2006
for any Permitted Acquisition that closed prior to the date of this Amendment
and after June 3, 2005).
“Basic
Rate” is,
as of
the Funding Date, the per annum rate of interest (based on a year of 360 days)
equal to the sum of (a) the U.S. Treasury note yield to maturity for a four-year
term as quoted in the Wall Street Journal on the day the Loan Supplement is
prepared, plus (b) three percent (3%).
“Committed
Revolving Line”
is a
Credit Extension of up to $25,000,000.
“Committed
Term Loan Line” is
a
Credit Extension of up to $25,000,000.
“Eligible
Foreign Accounts”
are
Accounts for which the account debtor does not have its principal place of
business in the United States but are: (a) covered by credit insurance
satisfactory to Lenders, less any deductible; or (b) supported by letter(s)
of
credit acceptable to Lenders; (c) that Lenders approve in writing, or (d)
Accounts for which the principal place of business of the account debtor is
Canada and the aggregate amount of such Accounts does not exceed
$600,000.
7
“Interest
Only Period”
is 12
months from the date of this Amendment.
“Pro
Rata Share” means,
with respect to each Lender, the percentage of the Committed Revolving Line
and
the Committed Term Loan Line set forth beneath the name of that Lender on the
signature page attached to this Amendment.
“Revolving
Maturity Date”
is June
29, 2009.
“Term
Loan Commitment Termination Date” is
June
29, 2008.
“Term
Loan Maturity Date”
is, with
respect to each Term Loan Advance made during the Interest Only Period, June
29,
2010, and with respect to each Term Loan Advance made after the Interest Only
Period, the third anniversary date of such Term Loan Advance, or in case of
any
Term Loan Advance, if earlier than the applicable date set forth above, the
date
of acceleration of such Term Loan Advance by Agent following an Event of
Default.
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 Lenders 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 Lenders to enter into this Amendment, Borrowers hereby represent and
warrant to Lenders 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;
8
4.2 Borrowers
have 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 the Existing Borrowers delivered to Lenders prior
to
the date of this Amendment, and of the New Borrowers delivered to Agent on
or
before the date of this Amendment, 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 Borrowers of this Amendment and the performance by
Borrowers of their obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
4.5 The
execution and delivery by Borrowers of this Amendment and the performance by
Borrowers of their 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 Borrowers, (b) any contractual restriction with a Person binding
on
Borrowers, (c) any order, judgment or decree of any court or other governmental
or public body or authority, or subdivision thereof, binding on Borrowers,
or
(d) the organizational documents of Borrowers;
4.6 The
execution and delivery by Borrowers of this Amendment and the performance by
Borrowers of their 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
any
Borrower, except as already has been obtained or made; and
4.7 This
Amendment has been duly executed and delivered by Borrowers and is the binding
obligation of Borrowers, enforceable against Borrowers 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.
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6. Effectiveness.
This
Amendment shall be deemed effective upon (a) the due execution and delivery
to
Agent of this Amendment by each party hereto, (b) delivery by the New Borrowers
to Agent of their respective certified Articles or Certificate of Incorporation
and good standing certificates certified by the Secretary of State of the States
of each New Borrowers’ respective jurisdiction of organization (in each case as
of a date no earlier than thirty (30) days prior to the date of this Amendment),
(c) Agent’s receipt of certified copies, dated as of a recent date, of financing
statement searches, as Agent shall request, accompanied by written evidence
(including any UCC termination statements) that the Liens indicated in any
such
financing statements either constitute Permitted Liens or have been or will
be
terminated or released, (d) Borrowers’ payment of a facility fee, (x) on account
of the Term Loan, in an amount equal to $37,500, and (y), on account of the
Committed Revolving Line, in an amount equal to $12,500, (e) the due execution
and delivery to Agent of Intellectual Property Security Agreements by each
New
Borrower, (f) a Perfection Certificate and Joinder Agreement from each New
Borrower, and (g) such other and further documents as Agent or any Lender shall
reasonably request.
[Signature
pages follows.]
IN
WITNESS
WHEREOF,
the
parties hereto have caused this Amendment to be duly executed and delivered
as
of the date first written above.
LENDERS | BORROWERS | |
KEYBANK NATIONAL ASSOCIATION | PERFICIENT, INC. | |
By: /s/ Xxxxxxxx X. Xxxx | By: /s/ Xxxx X. XxXxxxxx | |
Name: Xxxxxxxx X. Xxxx | Name: Xxxx X. XxXxxxxx | |
Title: Vice President | Title: Chairman and CEO | |
50% of Committed Revolving Line; | PERFICIENT GENISYS, INC. | |
50% of Committed Term Loan Line | ||
By: /s/ Xxxx X. XxXxxxxx | ||
SILICON VALLEY BANK | Name: Xxxx X. XxXxxxxx | |
Title: President and CEO | ||
By: /s/ Xxxxxx X. Xxxxx | ||
Name: Xxxxxx X. Xxxxx | PERFICIENT CANADA CORP. | |
Title: Vice President | ||
50% of Committed Revolving Line; | By: /s/ Xxxx X. XxXxxxxx | |
50% of Committed Term Loan Line | Name: Xxxx X. XxXxxxxx | |
Title: President and CEO | ||
AGENT | ||
PERFICIENT MERITAGE, INC. | ||
SILICON VALLEY BANK | ||
By: /s/ Xxxx X. XxXxxxxx | ||
By: /s/ Xxxxxx X. Xxxxx | Name: Xxxx X. XxXxxxxx | |
Name: Xxxxxx X. Xxxxx | Title: President and CEO | |
Title: Vice President | ||
PERFICIENT ZETTAWORKS, INC. | ||
By: /s/ Xxxx X. XxXxxxxx | ||
Name: Xxxx X. XxXxxxxx | ||
Title: President
and CEO
|
[Signature
Page to Amendment to Amended and Restated Loan and Security
Agreement]
[Signatures
Continued Next Page]
BORROWERS [Cont’d] | ||
PERFICIENT IPATH, INC. | ||
By: /s/ Xxxx X. XxXxxxxx | ||
Name: Xxxx X. XxXxxxxx | ||
Title: President and CEO | ||
PERFICIENT VIVARE, INC. | ||
By: /s/ Xxxx X. XxXxxxxx | ||
Name: Xxxx X. XxXxxxxx | ||
Title: President and CEO | ||
PERFICIENT BAY STREET, LLC | ||
By: /s/ Xxxx X. XxXxxxxx | ||
Name: Xxxx X. XxXxxxxx | ||
Title: President and CEO | ||
PERFICIENT INSOLEXEN, LLC | ||
By: /s/ Xxxx X. XxXxxxxx | ||
Name: Xxxx X. XxXxxxxx | ||
Title: President and CEO |
[Signature
Page to Amendment to Amended and Restated Loan and Security
Agreement]