Limited Waiver and Amendment to Loan Documents
Exhibit 10.21
Silicon
Valley Bank
Limited
Waiver and
Amendment
to Loan Documents
Borrower: Internap
Network Services Corporation
Date: March
14, 2005
THIS
LIMITED WAIVER AND AMENDMENT TO LOAN DOCUMENTS (this “Amendment”)
is
entered into between Silicon Valley Bank (“Silicon”) and the borrower named
above (“Borrower”).
Silicon
and Borrower agree to amend the Loan and Security Agreement between them, dated
October 21, 2002 (as otherwise amended, if at all, the “Loan Agreement”), as
follows, effective as of the date hereof. (Capitalized terms used but not
defined in this Amendment shall have the meanings set forth in the Loan
Agreement.)
1.Waiver
of Default. Borrower
has
advised Silicon that Borrower has failed to comply with the Minimum Cash EBITDA
Financial Covenant set forth in Section 5 of the Amended and Restated Schedule
to Loan and Security Agreement entitled "5. FINANCIAL COVENANTS (Section 5.1)"
for the reporting period ending December 31, 2004 (the “Covenant Default”).
Silicon and Borrower agree that the Borrower's Covenant Default is hereby
waived. It is understood by the parties hereto, however, that such waiver does
not constitute a waiver of any other provision or term of the Loan Agreement or
any related document, nor an agreement to waive in the future this covenant or
any other provision or term of the Loan Agreement or any related
document.
2. Modified
Minimum Cash EBITDA Financial Covenant. The
Minimum Cash EBITDA Financial Covenant for the fiscal quarter ending March 31,
2005 set forth in Section 5 of the Amended and Restated Schedule to Loan and
Security Agreement is hereby amended to read as follows:
For the
quarter ending March 31, 2005: <$6,000,000>;
All other
portions of the Minimum Cash EBITDA Financial Covenant and Section 5 of the
Amended and Restated Schedule to Loan and Security Agreement remain unchanged.
3. Extension
of Form 10-K Annual Reporting Requirement. The date
by which the Borrower is to provide Silicon with a copy of Borrower’s Form 10-K
annual report and its annual certified financial statements for the fiscal year
ending December 31, 2004, as set forth in paragraph 8 of Section 6 of the
Amended and Restated Schedule to Loan and Security Agreement, is hereby extended
to April 30, 2005.
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| Silicon Valley Bank |
Amendment to Loan
Documents |
4. Fee.
In
consideration for Silicon entering into this Amendment, Borrower shall
concurrently pay Silicon a fee in the amount of $2,500, which shall be
non-refundable and in addition to all interest and other fees payable to Silicon
under the Loan Documents. Silicon is authorized to charge said fee to Borrower’s
loan account.
5. Representations
True. Borrower
represents and warrants to Silicon that all representations and warranties set
forth in the Loan Agreement, as amended hereby, are true and correct as of the
date hereof.
6. General
Provisions. This
Amendment, the Loan Agreement, any prior written amendments to the Loan
Agreement signed by Silicon and Borrower, and the other written documents and
agreements between Silicon and Borrower set forth in full all of the
representations and agreements of the parties with respect to the subject matter
hereof and supersede all prior discussions, representations, agreements and
under-standings between the parties with respect to the subject hereof. Except
as herein expressly amended, all of the terms and provisions of the Loan
Agreement, and all other documents and agreements between Silicon and Borrower
shall continue in full force and effect and the same are hereby ratified and
confirmed.
|
Borrower:
By
/s/Xxxxx X.
Xxxxxx
President
or Vice President
By
/s/
Xxxxxxxxxx Xxxxxxxxxxx
Secretary
or Ass't Secretary |
Silicon:
SILICON
VALLEY BANK
By
/s/ Xxxxxxxx X.
Xxxxxx
Title__________________________
|
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| Silicon Valley Bank |
Amendment to Loan
Documents |
CONSENT
The
undersigned acknowledges that the undersigned’s consent to the foregoing
Amendment is not required, but the undersigned nevertheless does hereby consent
to the foregoing Amendment and to the documents and agreements referred to
therein and to all future modifications and amendments thereto, and any
termination thereof, and to any and all other present and future documents and
agreements between or among the fore-going parties. Nothing herein shall in any
way limit any of the terms or provisions of the Continuing Guaranty of the
undersigned, all of which are hereby ratified and affirmed.
|
CO
SPACE, INC.
By
/s/
Xxxxx X.
Xxxxxx
Title________________________
|
CO
SPACE CONSTRUCTION, LLC
By:
Co Space Services, LLC, its sole member
By:
Co Space, Inc., its sole member
By
/s/ Xxxxx X.
Xxxxxx
Title__________________________
|
|
CO
SPACE SERVICES, LLC
By:
Co Space, Inc., its sole member
By
/s/
Xxxxx X. Xxxxxx
Title_________________________
|
CO
SPACE SERVICES TEXAS, L.P.
By:
Co Space Services, LLC, its general partner
By:
Co Space, Inc., its sole member
By
/s/ Xxxxx X.
Xxxxx
Title__________________________ |
|
CO
SPACE PROPERTIES, LLC
By:
Co Space Services, LLC, its sole member
By:
Co Space, Inc., its sole member
By
/s/
Xxxxx X.
Xxxxxx
Title__________________________
|
CO
SPACE PROPERTIES TEXAS, L.P.
By:
Co Space Services, LLC, its general partner
By:
Co Space, Inc., its sole member
By
/s/ Xxxxx X.
Xxxxxx
Title__________________________ |
|
XXXX.XXX,
INC.
/s/
Xxxxx X. Xxxxxx
By____________________________
Title__________________________
|
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