EXHIBIT 10.32
LOAN DOCUMENT MODIFICATION AGREEMENT
(No. 5; dated as of September 3, 1997)
LOAN DOCUMENT MODIFICATION AGREEMENT (this "Agreement"), dated as of
September 3, 197, by and among EIS INTERNATIONAL, INC., a Delaware corporation
with its principal place of business at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("EIS"), EIS INTERNATIONAL SERVICES CORP., a Virginia corporation with its
principal place of business at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000
("ISC" and together with EIS, the "Borrowers"), and SILICON VALLEY BANK, a
California-chartered bank with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at One Central Plaza 00000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx
00000, doing business under the name "Silicon Valley East" (the "Bank").
1. Reference to Existing Loan Documents.
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Reference is hereby made to that certain Amended and Restated Commitment
Letter (the "Commitment Letter"), dated as of May 19, 1994, between EIS and the
Bank, as amended by a Joinder and Assumption Agreement ("Amendment No. 1"),
dated as of October 28, 1994, among EIS, ISC and the Bank, as further amended by
a Loan Modification Agreement ("Amendment No. 2"), dated as of October 4, 1995,
among EIS, ISC and the Bank, and as further amended by a Loan Document
Modification Agreement ("Amendment No. 3"), dated of December 27, 1995, among
EIS, ISC and the Bank, and a Loan Document Modification Agreement ("Amendment
No. 4"), dated as of April 15, 1996 among EIS, ISC and the Bank. The Commitment
Letter, together with the schedules and exhibits attached thereto, as amended by
Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 4 is herein
after referred to as the "Credit Agreement". Reference is also hereby made to
the Loan Documents referred to in the Credit Agreement, including without
limitation that certain Third Amended and Restated Promissory Note of the
Borrowers, dated December 27, 1995, as amended and restated of even date
herewith, in the principal amount of $7,000,000 (the "Note") and that certain
Amended and Restated Security Agreement, of even date herewith, by and between
EIS and the Bank and that certain Amended and Restated Security Agreement, of
even date herewith, by and between ISC and the Bank (collectively, the "Security
Agreements"). Unless otherwise defined herein, capitalized terms used in this
Agreement shall have the same respective meanings herein as are set forth in the
Credit Agreement.
2. Effective Date.
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This Agreement shall be deemed effective as of September 3, 1997 (the
"Effective Date"), provided that the Bank shall have received the following on
or before September 12, 1997 and provided further, however, that in no event
shall this Agreement become effective until signed by an officer of the Bank in
California:
a. two copies of this Agreement, duly executed by each of the Borrowers;
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b. a fourth amended and restated promissory note in the principal amount
of $7,000,000 payable to the order of the Bank in the form enclosed herewith
(the "Amended Note"), duly executed by each of the Borrowers.
c. two copies of each of the Security Agreements, duly executed by each
of the Borrowers;
d. Perfection Certificates, duly executed by each of the Borrowers;
e. financing statements on Form UCC-1 (or, where applicable, amendments
thereto on Form UCC-3), duly executed by each of the Borrowers, to be filed in
each jurisdiction where such filing is required to perfect the Bank's security
interest in the Collateral granted by the Borrowers pursuant to the Security
Agreement;
f. a certificate of the secretary or assistant secretary of each of the
Borrowers, attesting to the continuing validity of the certificate of
incorporation and by-laws of each of the Borrowers, the incumbency and
signatures of any officers executing this Agreement and the Loan Documents and
the approval by the Board of Directors of each of the Borrowers of this
Agreement and the Amended Note; and
g. a check in the amount of $4,350 in payment of the fees of Xxxxxxxx
& Worcester LLP, special counsel to the Bank.
By the signature of their respective authorized officers below, each
Borrower is hereby representing that, except as modified in Schedule A attached
hereto, the representations of such Borrower set forth in the Loan Documents
(including those contained in the Credit Agreement, as amended by this
Agreement) are true and correct as of the Effective Date as if made on and as of
such date. The Borrowers jointly and severally agree to pay on or before the
Effective Date a nonrefundable facility fee in connection herewith in the
aggregate amount of $26,250. In order to effectuate the foregoing, EIS confirms
its authorization as to the debiting of its account with the Bank in such amount
in order to pay the Bank the facility fee for the period up to and including the
extending Expiry Date. Finally, each Borrower agrees, that as of the Effective
Date, it has no defenses against its obligations to pay any amounts and perform
any of its obligations under the Credit Agreement and the other Loan Documents.
3. Description of Change in Terms.
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As of the Effective Date, the Credit Agreement is modified in the following
respects:
a. Section 2 of the Credit Agreement is hereby amended by deleting the
date "December 26, 1996" form the first line thereof and replacing it with the
date "September 2, 1998".
b. The first sentence of Section 3 of the Credit Agreement is hereby
deleted in its entirety and replaced with the following sentence:
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"Advances under the Commitment shall bear interest at a fluctuating rate
per annum equal to the Bank's Prime Rate (as defined below) plus
three-quarters of one percent (0.75%)."
c. The first sentence of the Section 4 of the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"The Borrowers jointly and severally agree to pay to the Bank a facility
fee for the period from December 27, 1996 through the Expiry Date in the
amount of Twenty Six Thousand Two Hundred Fifty Dollars ($26,250):"
d. Section 10 of the Credit Agreement is hereby amended by deleting
the last phrase of the first paragraph thereof (immediately following
subparagraph (A)) and replacing it with the following:
"to exceed at any time an amount equal to the lesser of (A) 70% of all
Eligible Accounts Receivable (as defined in Schedule III attached hereto)
at such time (the "Borrowing Base") and (B) Seven Million Dollars
($7,000,000) (the "Commitment" or the "Commitment Amount").
e. Section 10 of the Credit Agreement is hereby further amended by
deleting the second paragraph thereof in its entirety and replacing it with the
following:
"If the Credit Amount shall at any time exceed the Borrowing Base, the
Borrowers shall, on the next Business Day, (1) prepay or repay (together
with accrued interest thereon) such principal amount of the advances, and
any unreimbursed drawings under such letters of credit, or (2) if any
advances, drawings or obligations remain unpaid or unreimbursed, pledge to
the Bank, pursuant to a cash collateral pledge agreement duly executed by
the Borrowers in form and substance satisfactory to the Bank, an amount in
cash ("Cash Collateral"), such that, giving effect to such prepayment or
repayment, or such pledge of Cash Collateral, the Credit Amount shall be
less than the sum of the Borrowing Base plus all Cash Collateral pledged
to the Bank as provided in (2) above."
f. Section 19 of the Credit Agreement is hereby amended by deleting
the address of EIS International listed therein and inserting in lieu thereof
the following address:
"EIS INTERNATIONAL, INC.
EIS INTERNATIONAL SERVICES CORP.
000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
g. Schedule I to the Credit Agreement is hereby amended by inserting
the following new Section 14 at the end thereof:
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"14. Borrowing Base. Giving effect to any advances to be made, letters
of credit to be issued and/or FX Contracts entered into as of the date
hereof under the Commitment Letter, as amended, the aggregate Credit Amount
does not exceed the lesser of the Borrowing Base or the Commitment on such
date."
h. Subsections 4(a) through 4(c) of Schedule II to the Credit
Agreement are hereby deleted in their entirety and replaced with the following:
"(a) within twenty-five (25) days after the end of each month
(including the last month of the year), the unaudited consolidated balance
sheet and income statement of the Borrowers and their Subsidiaries on a
consolidated basis as at the end of, and for, such month, accompanied by a
certificate of the vice president of finance or chief financial officer of
each of the Borrowers, which certificate shall state that said consolidated
financial statements fairly present the consolidated financial condition
and results of operations of the Borrowers and their Subsidiaries in
accordance with GAAP (except for the absence of footnotes) consistently
applied, as at the end of, and for, such month (subject to normal year-end
audit adjustments);
(b) within ninety (90) days after the last day of each fiscal year of
the Borrowers, the audited consolidated balance sheet and income statement
and statement of cash flows of the Borrowers and their Subsidiaries as at
and for the fiscal year then ended, certified by the Accountants (the
substance of such report to be satisfactory to the Bank), together with a
certificate of the chief financial officer of each of the Borrowers to the
effect that such financial statements fairly present the consolidated
financial condition of the Borrowers and their Subsidiaries as of the end
of such fiscal year and the consolidated results of operations for such
fiscal year, in each case in accordance with GAAP. The Borrowers shall
indicate on said financial statements all guarantees or unusual forward or
long-term commitments made by the Borrowers or any Subsidiary thereof;
(c) at the time of the delivery of the monthly and yearly financial
statements required by Paragraphs 4(a) and 4(b), a Compliance Certificate
of the chief financial officer of each of the Borrowers in the form
attached to this Schedule II as Exhibit A;"
i. Subsection 4(g) of Schedule II to the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
"(g) within fifteen (15) days after the end of each fiscal month of
the Borrowers, (i) a list of the accounts receivable aging for the
Borrowers and their Subsidiaries on a consolidated basis as of the end of
such month in such form as is reasonably acceptable to the Bank, all in
reasonable detail and (ii) a Borrowing Base Certificate signed by the chief
financial officer of each of the Borrowers in the form attached to this
Schedule II as Exhibit B. The Bank will require audits no more than once
during each fiscal year of the Borrowers; provided, however, that the
Borrowers shall not receive any further advances under the Commitment
unless and until an agent of the Bank
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has conducted and the Bank has received an audit of the Borrowers'
accounts receivable, with the costs thereof to be borne by the Borrowers;"
j. Section 22 through 24 of Schedule II to the Credit Agreement are
hereby deleted in their entirety and replaced with the following:
"22. Leverage. The Borrowers will not permit the ratio of Total
Senior Liabilities (net of Deferred Revenues) to Tangible Net Worth
to exceed 0.75 to 1 at the end of any fiscal quarter.
23. Quick Ratio. The Borrowers will not permit the Quick Ratio
to be less than 1.25 to 1 at the end of any fiscal quarter.
24. Minimum Tangible Net Worth. The Borrowers will not permit
Tangible Net Worth at the end of the fiscal quarter ending
September 30, 1997 to be less than Thirty Seven Million Dollars
($37,000,000); will not permit Tangible Net Worth at the end of the
fiscal quarter ending December 31, 1997 to be less than an amount
equal to Thirty Seven Million Dollars ($37,000,000) plus 75% of Net
Income (and not taking into account any Net Loss) for the previous
quarter; and will not permit Tangible Net Worth at the end of each
subsequent fiscal quarter to be less than an amount equal to the
minimum Tangible Net Worth for the previous fiscal quarter, as
determined in accordance with the terms hereof, plus 75% of Net
Income (and not taking into account any Net Loss) for the previous
quarter."
k. Section 25 of Schedule II to the Credit Agreement is hereby
deleted in its entirety.
l. Schedule II to the Credit Agreement is hereby further amended by
restating in its entirety Exhibit A thereto in the form of Exhibit A hereto.
l. Schedule II to the Credit Agreement is hereby further amended by
restating in its entirety Exhibit B thereto in the form of Exhibit B hereto.
m. Schedule III to the Credit Agreement is hereby amended to add the
following new definitions in alphabetical order:
"'Borrowing Base' shall have the meaning given to such term in Section
10 of the Commitment Letter."
"'Eligible Accounts Receivable' means those accounts that arise
in the ordinary course of the Borrowers' business; provided, that
standards of eligibility may be fixed and revised from time to tome by
Bank in Bank's reasonable judgment and upon notification thereof to
the Borrowers in accordance with the provisions hereof. Unless
otherwise agreed to by Bank, Eligible Accounts Receivable shall meet
the following specifications at the time they come into existence and
continue to meet the same through the date of determination:
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(a) The account (if not a lease or time receivable) is not more than
90 days from the date of the invoice thereof, and the account, regardless
of its stated maturity date, does not remain unpaid more than 90 days after
such invoice date.
(b) The account arose from the performance of services or an outright
sale or license of goods by one of the Borrowers, such goods have been
shipped to the account debtor, and such Borrower has possession of shipping
and delivery receipts evidencing such shipment.
(c) The account is owned solely by a Borrower and is not subject to
any assignment, claim, lien, or security interest, other than a security
interest in favor of the Bank.
(d) The account is not subject to set-off, credit, allowance or
adjustment by the account debtor, except discount allowed for prompt
payment, and the account debtor has not complained in writing as to his
liability thereon and has not returned any of the goods from the sale from
which the account arose.
(e) The account arose in the ordinary course of a Borrower's business,
and did not arise from the performance of services or a sale of goods to a
supplier or employee of such Borrower.
(f) No event of the type described in clause (f) of the definition of
"Event of Default" contained in this Schedule III has occurred with respect
to the account debtor.
(g) The Borrower in question has pledged any instrument or chattel
paper evidencing the account to the Bank pursuant to the provisions of the
Security Agreement.
(h) Not more than 50% of the aggregate accounts, of the account
debtor, excluding lease and time receivables, are over ninety (90) days
from invoice on the date of determination.
(i) The aggregate accounts from the account debtor do not exceed 25%
of the total Eligible Accounts Receivable of the Borrower in question on
the date of determination; that portion of the accounts over the 25% level
will be disqualified.
(j) The account does not result from goods placed on consignment,
guaranteed sale, sale or return, sale on approval, xxxx and hold, or other
terms by reason of which payment by the account debtor may be conditional.
(k) The account is not a result of an inter-company transfer by the
Borrowers.
(l) Neither Borrower owns any amounts to the account debtor on the
date of determination; to the extent that any amounts are so owed, the
accounts of
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such account debtor in an amount equal to the amounts owed by the
Borrowers to the account debtor, shall be disqualified.
(m) The Bank has not notified the Borrowers that the Bank has
determined (which determination shall not be made unreasonably) that the
account or account debtor is unsatisfactory.
(n) If the account debtor is a Governmental Authority, the Borrower in
questions has assigned the account to the Bank in compliance with the
Federal Assignment of Claims Act (or similar state law, if the Governmental
Authority is a state or a political subdivision thereof), and has furnished
to the Bank all documents and filings evidencing such compliance.
(o) The account debtor is a Person located in the United States, and
the account arose out of services rendered or goods delivered in the United
States.
(p) That portion of a lease or time receivable which is due within 90
days and which lease or time account debtor is current in its payments to
the Borrower.
n. Schedule III to the Credit Agreement is hereby further amended by
deleting the definition of "Net Income" and restating in their entirety the
definitions of "Net Income" or "Net Loss" as follows:
"'Net Income' or 'Net Loss' for any period in respect of which the
amount thereof is to be determined, shall mean the aggregate of the
consolidated net income (or net loss) after taxes for such period (taken as
a cumulative whole) of the Borrowers and their Subsidiaries, determined in
accordance with GAAP, exclusive of the write-up of any asset, less the
amount of any increase to the Borrowers' capitalized software account under
GAAP during the period in question, plus the aggregate amount of
capitalized software amortized during such period."
4. Continuing Validity.
Upon the effectiveness hereof, each reference in each Loan Document to
"the Credit Agreement", "thereunder", "thereof", "therein", or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended hereby. Except as specifically set forth above, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed. Except as set forth in Section 3 above and in the fourth amended
and restated Note, each of the other Loan Documents is in full force and effect
and is hereby ratified and confirmed. The amendments set forth above (i) do not
constitute a waiver or modification of any term, condition or covenant of the
Credit Agreement or any other Loan Document, other than as expressly set forth
herein, and (ii) shall not prejudice any rights which the Bank may now or
hereafter have under or in connection with the Credit Agreement, as modified
hereby, or the other Loan Documents and shall not obligate the Bank to assent to
any further modifications.
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5. Miscellaneous.
a. This Agreement may be signed in one or more counterparts each of
which taken together shall constitute one and the same document.
b. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
c. EACH OF THE BORROWERS ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN
ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND AGAINST IT WHICH ARISES OUT OF OR
BY REASON OF THIS LOAN MODIFICATION AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR
ANY REASON THE BANK CANNOT AVAIL ITSELF OF THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS, THEN VENUE SHALL LIE IN SANTA XXXXX COUNTY, CALIFORNIA.
d. The Borrowers jointly and severally agree to promptly pay on demand
all costs and expenses of the Bank in connection with the preparation,
reproduction, execution and delivery of this letter amendment and the other
instruments and documents to be delivered hereunder, including the reasonable
fees and out-of-pocket expenses of Xxxxxxxx & Worcester LLP, special counsel for
the Bank with respect thereto.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Bank and the Borrowers have caused this Agreement
to be signed under seal by their respective duly authorized officers as of the
date set forth above.
SILICON VALLEY EAST, a Division
of Silicon Valley Bank, as the Bank
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
Title: Assistant Vice President
SILICON VALLEY BANK, as the Bank
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Document Officer
(signed in Santa Clara, CA)
EIS INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President - Finance and
Treasurer
EIS INTERNATIONAL SERVICES CORP.
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President-Finance and
Treasurer
EXHIBIT A
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM: EIS INTERNATIONAL, INC. and EIS INTERNATIONAL SERVICES CORP.
The undersigned authorized officers of EIS International, Inc. and EIS
International Services Corp. hereby certifies that in accordance with the terms
and conditions of the Credit Agreement, as amended, between Borrower and Bank
(the "Agreement"), (i) each Borrower is in complete compliance for the period
ending ______________ with all required covenants except as noted below and (ii)
all representations and warranties of each Borrower stated in the Agreement are
true and correct in all material respects as of the date hereof. Attached
herewith are the required documents supporting the above certification. Each
Officer further certifies that these are prepared in accordance with Generally
Accepted Accounting Principles (GAAP) and are consistently applied from one
period to the next except as explained in an accompanying letter or footnotes.
The Officer expressly acknowledges that no borrowings may be requested by a
Borrower at any time or date of determination that such Borrower is not in
compliance with any of the terms of the Agreement, and that such compliance is
determined not just at the date this certificate is delivered.
Please indicate compliance status by circling Yes/No under "Complies" column.
Reporting Covenant Required
------------------ --------
Complies
--------
Monthly financial statements Monthly within 25 days Yes No
Annual (CPA Audited) FYE within 90 days Yes No
A/R Agings Monthly within 15 days Yes No
A/R Audit Initial and Annual Yes No
Financial Covenant Required Actual Complies
------------------ -------- ------ --------
Maintain on a Quarterly Basis:
Minimum Quick Ratio 1.25:1.0 ___:1.0 Yes No
Minimum Tangible Net Worth $37,000,000* $______ Yes No
Maximum Debt/Tangible Net Worth 0.75:1.0 ___:1.0 Yes No
*increasing by 75% of Net Income the previous quarter.
Comments Regarding Exceptions: See Attached.
Sincerely,
EIS INTERNATIONAL, INC. EIS INTERNATIONAL SERVICES CORP.
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SIGNATURE SIGNATURE
TITLE TITLE
DATE DATE
EXHIBIT B
BORROWING BASE CERTIFICATE
Borrowers: EIS International, Inc. and EIS International Services Corp.
Bank: Silicon Valley Bank
Commitment Amount: $7,000,000
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ACCOUNTS RECEIVABLE
1. Accounts Receivable Book Value as of ________ $_________
2. Lease Receivables $_________
3. TOTAL ACCOUNTS RECEIVABLE $_________
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4. Amounts over 90 days due $_________
5. Balance of 50% over 90 day accounts $_________
6. Concentration Limits $_________
7. Foreign Accounts $_________
8. Contra Accounts $_________
9. Promotion or Demo Accounts $_________
10. Intercompany/Employee Accounts $_________
11. Other (please explain on reverse) $_________
12. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $_________
13. Eligible Accounts (#3 minus #12) $_________
14. LOAN VALUE OF ACCOUNTS (70% of #13) $_________
BALANCES
15. Maximum Loan Amount $7,000,000
16. Total Borrowing Base (#14) $_________
17. Total Funds Available (Lesser of #15 or #16) $_________
18. Present balance owing on Commitment $_________
19. RESERVE POSITION (#17 minus #18) $_________
The undersigned represents and warrants that the foregoing is true, complete
and correct, and that the information reflected in this Borrowing Base
Certificate complies with the representations and warranties set forth in
the amended and restated Commitment Letter, as amended, between the Borrowers
and Silicon Valley Bank.
COMMENTS:
By: _____________________________
Authorized Signer
