Exhibit 10.25
AMENDMENT TO LOAN DOCUMENTS
THIS AMENDMENT to Loan Documents (this "Amendment'" or the "March 2006
Amendment") is entered into as of March 22, 2006 (the "March 2006 Amendment
Date"), by and between, on the one hand, SILICON VALLEY BANK, a California
corporation ("Bank" or "Silicon"), and, on the other hand, ISILON SYSTEMS, INC.,
a Delaware corporation ("Borrower"), whose chief executive office is located at
000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS
X. Xxxxxxxx and Bank are parties to that certain Loan and Security
Agreement, dated June 24, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement"), between them.
B. Bank has extended credit to Borrower for the purposes permitted in the
Loan Agreement.
X. Xxxxxxxx has requested that Bank amend the loan Agreement to, among
other things: (i) modify the Borrowing Base; (ii) increase the overall sublimit
for Letters of Credit, FX Forward Contracts, and Cash Management Services,
combined; (iii) increase the allowance for downstreaming to Borrower's
Subsidiaries; and (iv) increase the dollar amount of the subordinated secured
debt financing previously permitted by Bank (subject to the execution and
delivery of a debt and lien subordination agreement in form and substance
acceptable to Bank) from $5,000,000 to $6,000,000; in each ease, all as more
fully set forth herein.
X. Xxxx 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 deemed in this Amendment
shall have the meanings given to them in the Loan Agreement. The terms "March
2006 Amendment" and "March 2006 Amendment Date", in each case, as deemed in the
preamble to this Amendment, are hereby, incorporated into the Loan Agreement.
2. AMENDMENTS TO LOAN DOCUMENTS.
2.1 MODIFICATION OF BORROWING BASE. The portion of Section 1(C) of
the Schedule to Loan Agreement that currently reads:
As used herein, the term "Borrowing Base" means, as of any date of
determination, the sum of clauses (a), (b), and (c) below:
(a) 80% (the "Eligible Accounts Advance Rate" and also an
"Advance Rate") of (1) the net amount of Borrower's Eligible Accounts (as
defined in Section 8 above), plus (2) without duplication of any amounts in (1),
the net amount of Borrower's Eligible Foreign Account (as defined in Section 8
above); provided that Revolving Loans based on eligible Foreign Accounts shall
under no circumstances exceed the lesser of $700,000 or the amount that would
violate the Foreign Accounts/Inventory Maximum Amount Condition (as defined
below);
plus
(b) an amount not to exceed the lowest of:
(1) 100% (the "Eligible Inventory Advance Rate" and also
an "Advance Rate") of the value of Borrower's Eligible
Inventory (as defined in Section 8 above), calculated at
the lower of cost or market value and determined on a
first-in, first-out basis; or
(2) $250,000; provided that Revolving Loans based on
Eligible Inventory shall under no circumstances exceed
the amount that would violate the Foreign
Accounts/Inventory Maximum Amount Condition;
plus
(c) an amount not to exceed, as of such date of determination,
the then aggregate amount of Xxxxxxxx's unrestricted cash that is on deposit
with Silicon and is unencumbered (except for Silicon's security interests
therein and control thereof).
As used herein, the term "Foreign Accounts/Inventory Maximum Amount
Condition" means that, as of any xxxx of determination, the aggregate
amount of Revolving Loans based on Eligible Inventory, together with
Revolving Loans based Eligible Foreign Accounts, shall not exceed an
amount equal to 25% of Borrower's Accounts. hereby is amended and restated
in its entirety to read as follows:
As used herein, the term "Borrowing Base'" means, as of any date of
determination, the sum of clauses (a), (b), and (c) below:
(a) 85% (the "Eligible Accounts Advance Rate" and also an
"Advance Rate") of (1) the net amount of Borrower's Eligible Accounts (as
defined in Section 8 above); plus (2) without duplication of any amounts in (1)
the net amount of Borrower's Eligible Foreign Accounts (as defined in Section 8
above); provided that Revolving Loans based on Eligible Foreign
-2-
Accounts shall under no circumstances exceed the lesser of $1,200,000 or the
amount that would violate the Foreign Accounts/Total Accounts Condition (as
defined below);
plus
(b) [intentionally omitted]
plus
(c) an amount not to exceed, as of such date of determination,
the then aggregate amount of Xxxxxxxx's unrestricted cash that is on deposit
with Silicon, is subject to Silicon's continuing first-priority perfected
security interests therein (and no other creditor's security interests therein,
unless the same is subordinated in favor of Silicon on terms and conditions
satisfactory to Silicon in its good faith business judgment), and is subject to
Silicon's control thereof (and no other creditor's control thereof).
As used herein, the term "Foreign Accounts/Accounts Condition" means that,
as of any date of determination, the aggregate amount of Revolving Loans
based on Eligible Foreign Accounts shall not exceed an amount equal to 33%
of the Borrower's Accounts.
2.2 MODIFICATION OF OVERALL SUBLIMIT FOR LETTERS OF CREDIT, FX
FORWARD CONTRACTS, AND CASH MANAGEMENT SERVICES, COMBINED.
(a) The portion of Section 1(C) of the Schedule to Loan
Agreement that currently reads:
LC Sublimit (Section 1.6): $250,000; provided, however, that the sum of
the aggregate face amount of outstanding Letters of Credit, plus the FX
Reserve, plus the aggregate amount of Obligations in respect of Cash
Management Services, shall not at any time exceed $250,000.
FX Sublimit: $250,000; provided, however, that the sum of the aggregate
face amount of outstanding Letters of Credit, plus the LX Reserve, plus the
aggregate amount of Obligations in respect of Cash Management Services shall not
at any time exceed $250,000.
hereby is amended and restated in its entirety to read as follows:
LC Sublimit (Section 1.6): $750.000; provided, however, that the sum of
the aggregate face amount of outstanding Letters of Credit, plus the FX
Reserve, plus the aggregate amount of Obligations in respect of Cash
Management Services, shall not at any time exceed $750.000,
FX Sublimit: $750,000: provided, however, that the sum of the aggregate
face amount of outstanding Letters of Credit, plus the FX Reserve, plus
the aggregate amount of Obligations in respect of Cash Management
Services, shall not at any time exceed $750,000.
(b) The portion of Section I(C) of the Schedule to Loan
Agreement that currently reads:
-3-
Cash Management Services and Reserves: Borrower may use up to $250,000 of
Revolving Loans available hereunder for Silicon's Cash Management Services
(as defined below), including, merchant services, business credit card,
ACH and other services identified in the cash management services
agreement related to such service (the "Cash Management Services");
provided, however, that the sum of the aggregate face amount of
outstanding Letters of Credit, plus the FX Reserve, plus the aggregate
amount of Obligations in respect of Cash Management Services, shall not at
any time exceed $250.000.
hereby is amended and restated in its entity to read as follows:
Cash Management Services and Reserves: Borrower may use up to $750,000 of
Revolving Loans available hereunder for Silicon's Cash Management Services
(as defined below), including, merchant services, business credit card,
ACH and other services identified in the cash management services,
agreement related to such service (the "Cash Management Services");
provided, however, that the sum of the aggregate face amount of
outstanding Letters of Credit, plus the FX Reserve, plus the aggregate
amount of Obligations in respect of Cash Management Services, shall not at
any time exceed $750.000.
2.3 INCREASE OF ALLOWANCE FOR "DOWNSTREAMING" FUNDS TO SUBSIDIARIES.
Section 8(8) of the Schedule to Loan Agreement hereby is amended and restated in
its entirety to read as follows:
(8) Downstreaming of Funds to Subsidiaries. Anything (including Section
5.5(vii) of the Loan Agreement) to the contrary notwithstanding, Borrower
shall not transfer funds (whether in the form of loans, equity capital
contributions, or otherwise) or other assets to any one or more of
Borrower's subsidiaries, except that Borrower ma\ transfer up to
$1,700,000 cash (in the aggregate for all such subsidiaries) in each
fiscal quarter of Borrower.
Bank and Borrower hereby agree that, if and to the extent Borrower
transferred more than $500,000 but less than or equal to $1,700,000 in the
fiscal quarter ended December 31, 2005 in violation of Section 8(8) of the
Schedule to Loan Agreement (as in effect immediately prior to the
effectiveness of this Amendment), then such violation hereby is waived. It
is understood, however, that the foregoing waiver of such violation does
not constitute a waiver of the aforementioned covenant with respect to any
other date or time period, or of any other provision or term of the Loan
Agreement or any other Loan Document, nor an agreement to waive in the
Future such covenant with respect to any other date or time period or any
other provision or term of the Loan Agreement or any other Loan Document.
2.4 PERMITTED NEW SUBORDINATED DEBT. The following hereby arc added
(in proper numerical order) as a new Section 8(10) and a new Section 8(11),
respectively, of the Schedule to Loan Agreement:
(10) HORIZON SUB DEBT. Concurrently herewith, Borrower is entering into a
subordinated debt financing transaction in an approximate dollar amount of
S6,000,000 (rather than the 5,000,000 limit set forth in Section 3 of that
certain prior Amendment to Loan Documents, dated as of March 10, 2005,
between Borrower and Silicon) pursuant to that certain Venture
-4-
Loan and Security Agreement, dated as of March 22, 2006, between Horizon
Technology Funding Company ("Horizon") and Borrower (as amended, restated,
supplemented, or otherwise modified from time to time, the "Horizon Sub
Debt Agreement'"). Borrower hereby represents and warrants that, attached
as Exhibit A to the March 2006 Amendment, are true, correct, and complete
copies of the Horizon Sub Debt Agreement and all material agreements,
instruments, and other documents in connection therewith (together with
the Horizon Sub Debt Agreement, collectively, the "Horizon Sub Debt
Documents"). Silicon acknowledges and consents to such subordinated debt
financing transaction in accordance with the Horizon Sub Debt Documents,
subject to the execution and delivery of a debt and lien subordination
agreement in form and substance acceptable to Silicon (the "Horizon
Subordination Agreement"). This Section 8(10) of this Schedule supersedes
the prior agreement of Borrower and Silicon relative to such subordinated
debt set forth in Section 3 of that certain prior Amendment to Loan
Documents, dated as of March 10, 2005, between Borrower and Silicon.
Borrower and Silicon hereby agree that: (1) the occurrence and
continuation of any event of default under any one or more of the Horizon
Sub Debt Documents (after giving effect (without duplication hereof) of
all applicable cure periods, if any) shall constitute an Event of Default
hereunder; (2) the occurrence and continuation of any material violation
of the Horizon Subordination Agreement by any party thereto (other than
Silicon) shall constitute an Event of Default hereunder; (3) the Horizon
Subordination Agreement ceasing to be in full force and effect at any time
(other than upon the payment in full in cash on all Obligations and the
irrevocable termination of Silicon's, commitments to extend credit to
Borrower) shall constitute an Event of Default hereunder; (4) Borrower
shall promptly deliver to Silicon copies of all material notices and other
communications by or to any party to the Horizon Sub Debt Documents in
respect of the Horizon Sub Debt Documents or the transactions contemplated
thereunder; and (5) Borrower shall not cause, permit, or suffer the
modification of any one or more terms of the Horizon Sub Debt Documents
(other than terms that, individually and in the aggregate, are not
material), unless any and all such modifications (individually and in the
aggregate) are not materially adverse to Borrower and not adverse to
Silicon.
(11) PERMITTED CONTRACTUAL LIMITATIONS ON SVB DEBT. Borrower shall not
agree with Horizon or another Person, whether pursuant of the Horizon Sub
Debt Documents or otherwise, to restrict in any manner the amount of
indebtedness that now or hereafter may he owing by Borrower to Silicon,
except solely that the Horizon Sub Debt Agreement may require that: (a) no
Revolving Loans may be affirmatively made by Silicon to Borrower at
Borrower's express request therefor, if and to the extent such requested
Revolving Loan, if made, would cause the portion of all outstanding
Revolving Loans made by Silicon to Borrower that consists solely of
principal to exceed the SVB Revolver Principal Cap (as defined below); and
(b) the portion of all outstanding Equipment Loans made by Silicon to
Borrower that consists solely of principal shall not exceed Two Million
Three Hundred Twenty Thousand Dollars ($2,320.000) in the aggregate at any
one time outstanding the "SVB Equipment Term Loan Principal Cap").
As used herein, the term "SVB Revolver Principal Cap" means, as of any
date of determination, the loser (i) Six Million Dollars ($6,000,000), and
(ii) the sum of the then
-5-
aggregate amount of all Accounts of Borrower, plus the then aggregate
value of all Inventory of Borrower, plus the then aggregate amount of
Borrower's unrestricted cash that is on deposit with Silicon, is subject
to Silicon's continuing first-priority perfected security interests
therein (and no other creditor's security interests therein, unless the
same is subordinated in favor of Silicon on terms and conditions
satisfactory to Silicon in its good faith business judgment), and is
subject to Silicon's control thereof (and no other creditor's control
thereof). For the avoidance of doubt, the SVB Revolver Principal Cap shall
not limit, and is not intended to limit, any interest, fees, expenses,
charges, costs, or any other Obligations (except the principal portion of
outstanding Revolving Loans).
2.5 MODIFICATION OF ZERO LOAN BALANCE CONDITION. The portion of
Section 9 of the Schedule to Loan Agreement that currently reads:
As used herein, the term "Zero Loan Balance Condition" means, as of any
date of determination, that no Revolving Loans, Letters of Credit, FX
Forward Contracts, or Obligations relative to Cash Management Services
have been outstanding, and no requests for Revolving Loans, Letters of
Credit, FX Forward Contracts, or Cash Management Services, have been made
by Borrower, during the consecutive 30-day period ending on such date of
determination: provided, however, that, solely for purposes of this
definition, Letters of Credit, FX Forward Contracts, or Obligations
relative to Cash Management Services, in an aggregate amount not to exceed
15% of the then extant Excess Availability, may be outstanding or
requested without causing the Zero Loan Balance Condition to be not
satisfied.
hereby is amended and restated in its entirety to read as follows:
As used herein, the terns "Zero Loan Balance Condition" means, as of any
date of determination, that no Revolving Loans, Letters of Credit, FX
Forward Contracts, or Obligations relative to Cash Management Services
have been outstanding, and no requests for Revolving Loans, Letters of
Credit, FX Forward Contracts, or Cash Management Services, have been made
by Borrower, during the consecutive 30-day period ending on such date of
determination; provided, however, that, solely for purposes of this
definition, Letters of Credit, FX Forward Contracts, or Obligations
relative to Cash Management Services, in an aggregate amount not to exceed
15% of the then extant Excess Availability, may be outstanding or
requested without causing the Zero Loan Balance Condition to be not
satisfied; provided, further, that, solely for purposes of this
definition, Revolving Advances may be made and permitted to remain
outstanding, solely during the consecutive-15-day-period comprising the
last 14 days of any fiscal quarter and the first day of the immediately
following fiscal quarter, without causing the Zero Loan Balance Condition
to be not satisfied, if and only if all amounts from the funding of such
Resolving Advances (i) remain on deposit solely in Borrower's Deposit
Accounts maintained at Bank while such Revolving Advances remain
outstanding, and (ii) are used solely to repay such outstanding Revolving
Advances at the end of such 15-day period.
2.6 MODIFICATION REGARDING NO THIRD PARTY CONTROL AGREEMENTS.
Section 8(1) of the Schedule to Loan Agreement hereby is re-designated as
Section 8(1)(a) of the Schedule to
-6-
Loan Agreement, and the following hereby is added (in proper alpha-numerical
orders as a new Section 8(1)(h) of the Schedule to Loan Agreement:
(b) NO THIRD PARTY CONTROL AGREEMENTS. Borrower herein agrees
that Borrower shall not cause, suffer, or permit any Deposit Accounts and
Investment Property (including securities accounts) maintained with an
institution other than Silicon to he or become subject to any control agreement
in favor of any creditor other than Silicon: it being acknowledged that such
other institution has "control" (within the meaning of Articles 8 and 9 of the
Code) over any such Deposit Account or Investment Properly (including securities
accounts), as the case may be, by operation of law without the need of a control
agreement.
2.7 MODIFICATION OF SECTION 3.3 OF THE LOAN AGREEMENT. The portion
of Section 3.3 of the Loan Agreement that currently reads:
except that Borrower may maintain sales offices in the ordinary course of
business at which not more than a total of $10,000 fair market value of
Equipment is located.
hereby is amended and restated in its entirety to read as follows:
except that Borrower may maintain sales offices, in the ordinary course of
business, at each of which sales offices (i) Equipment consisting of
demonstration units is located in the ordinary course of business, and
(ii) other Equipment with a fair market value of not more than $50,000 is
located in the ordinary course of business.
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 the Loan Agreement and any other present or
future agreement between Borrower or any guarantor of any of the Obligations, on
the one hand, and/or for the benefit of Bank, on the other hand, in connection
with the Loan Agreement (in each ease, as amended, restated, supplemented, or
otherwise modified from time to time, collectively, the "Loan Documents"), 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
-7-
as of the date hereof (except to the extent such representations and warranties
relate to an earlier date, in which case the 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 Documents, as amended by
this Amendment;
4.3 The organizational documents of Xxxxxxxx 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 Borrower of this Amendment and the
performance by Borrower of its obligations under the Loan Documents as amended
In 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 Documents, 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 Xxxxxxxx;
4.6 The execution and delivery by Borrower of this Amendment and the
performance by Borrower of its obligations under the Loan Documents, 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 Xxxxxxxx
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. FEE. In consideration for Bank entering into this Amendment, Borrower
shall pay Bank a fee of $1,500 concurrently with the execution and delivery of
this Amendment, which fee shall be non-refundable and in addition to all
interest and other fees payable to Bank under the Loan Documents, Bank is
authorized to charge said fee to Xxxxxxxx's loan account.
6. 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.
7. EFFECTIVENESS. This Amendment shall be deemed effective upon:
(a) the due execution and delivery to Bank of this Amendment by each
party hereto:
-8-
(b) the due execution and delivery to Bank of the Horizon
Subordination Agreement by each party thereto; and
(c) the concurrent receipt by Bank of evidence satisfactory to Bank
(in its good faith business judgment) that, concurrently herewith, (i) Borrower
has closed the subordinated debt financing transaction pursuant to the Horizon
Sub Debt Documents, which subordinated debt financing transaction shall be
subject to Horizon Subordination Agreement in full force and effect, and (ii)
Borrower shall have received the $6,000,000 funded from such subordinated debt
financing transaction.
[Remainder of page intentionally left blank; signature pageimmediately
follows.]
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to duly
executed and delivered as of the date first written above.
ISILON SYSTEMS
By /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: CFO
SILICON VALLEY BANK
By /s/ Xxxxxxx XxXxxxxx
----------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Sr. Vice President
-10-
EXHIBIT A
Attached hereto are copses of all Horizon Sub Debt Documents, which
Borrower (pursuant to Section 8(10) of the Schedule to Loan Agreement)
represents and warrants to be true, correct, and complete.
-11-
