FIRST LOAN MODIFICATION AGREEMENT
Exhibit 10.12
FIRST LOAN MODIFICATION AGREEMENT
This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of the First Loan Modification Effective Date, by and between (i) SILICON VALLEY BANK, a California corporation with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (“Bank”), and (ii) MEDIDATA SOLUTIONS, INC., a Delaware corporation with offices located at 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Solutions”) and MEDIDATA FT, INC. (formerly known as Fast Track Systems, Inc.), a California corporation with offices located at 00 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (“FT”, and together with Solutions, individually and collectively, the “Borrower”).
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and obligations which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan arrangement dated as of September 10, 2008, evidenced by, among other documents, a certain Loan and Security Agreement dated as of September 10, 2008, between Borrower and Bank (as amended, the “Loan Agreement”). Capitalized terms used but not otherwise defined herein shall have the same meaning as in the Loan Agreement.
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the Collateral as described in the Loan Agreement (together with any other collateral security granted to Bank, the “Security Documents”).
Hereinafter, the Security Documents, together with all other documents evidencing or securing the Obligations shall be referred to as the “Existing Loan Documents”.
3. DESCRIPTION OF CHANGE IN TERMS.
| A. | Modifications to Loan Agreement. |
| 1 | The Loan Agreement shall be amended by deleting the following, appearing as Section 6.2(a)(iii) thereof, in its entirety: |
“(iii) as soon as available, and in any event within thirty (30) days after the end of each month, monthly unaudited financial statements”
and inserting in lieu thereof the following:
“(iii) as soon as available, and in any event within thirty (30) days after the end of each month, monthly consolidated and consolidating unaudited financial statements;”
| 2 | The Loan Agreement shall be amended by deleting the following, appearing as Section 6.2(a)(v) thereof, in its entirety: |
“(v) as soon as available, and in any event within forty-five (45) days after the end of each fiscal quarter of Borrower, quarterly unaudited financial statements;”
and inserting in lieu thereof the following:
“(v) as soon as available, and in any event within forty-five (45) days after the end of each fiscal quarter of Borrower, quarterly consolidated and consolidating unaudited financial statements;”
| 3 | The Loan Agreement shall be amended by deleting Section 6.9(a) in its entirety and replacing it with the following: |
“(a) Profitability. A minimum Net Income (loss) of at least (not more than) the following for each quarterly period indicated below:
| Quarterly Period Ended |
Minimum Profitability | ||
| December 31, 2008 and March 31, 2009 |
$ | (2,500,000) | |
| June 30, 2009 |
$ | (1,500,000) | |
| September 30, 2009 |
$ | 1.00 | |
| December 31, 2009 and March 31, 2010 |
$ | 1,750,000 | |
| June 30, 2010, and each quarterly period of the Borrower thereafter |
$ | 3,000,000” | |
| 4 | The Loan Agreement shall be amended by deleting the following definition appearing in Section 13.1 thereof, in its entirety: |
“Prime Rate” is Bank’s most recently announced “prime rate,” even if it is not Bank’s lowest rate.”
and inserting in lieu thereof the following:
“Prime Rate” is the greater of (a) four and one-half percent (4.50%) per annum, and (b) Bank’s most recently announced “prime rate,” even if it is not Bank’s lowest rate.”
| 5 | The Loan Agreement shall be amended by inserting the following definitions in Section 13.1 thereof, each in its appropriate alphabetical order: |
“First Loan Modification Agreement” means that certain First Loan Modification Agreement, executed by Borrower and Bank, dated as of the First Loan Modification Effective Date.”
“First Loan Modification Effective Date” is the date indicated on the signature page to the First Loan Modification Agreement.”
| 6 | The Compliance Certificate appearing as Exhibit B to the Loan Agreement is hereby replaced with the Compliance Certificate attached as Exhibit A hereto. |
4. FEES. Borrower shall pay to Bank a modification fee equal to Fifty Thousand Dollars ($50,000), which fee shall be due on the date hereof and shall be deemed fully earned as of the date hereof. Borrower shall also reimburse Bank for all legal fees and expenses incurred in connection with this amendment to the Existing Loan Documents.
5. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Intellectual Property Security Agreement dated as of September 10, 2008 between Solutions and Bank, and acknowledges, confirms and agrees that said Intellectual Property Security Agreement contains an accurate and complete listing of all Intellectual Property Collateral as defined in said Intellectual Property Security Agreement, shall remain in full force and effect. Notwithstanding the terms and conditions of the Intellectual Property Security Agreement, the Borrower shall not register any Copyrights or Mask Works in the United States Copyright Office unless it: (i) has given at least fifteen (15) days’ prior-written notice to Bank of its intent to register such Copyrights or Mask Works and has provided Bank with a copy of the application it intends to file with the United States Copyright Office (excluding exhibits thereto); (ii) executes a security agreement or such other documents as Bank may reasonably request in order to
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maintain the perfection and priority of Bank’s security interest in the Copyrights proposed to be registered with the United States Copyright Office; and (iii) records such security documents with the United States Copyright Office contemporaneously with filing the Copyright application(s) with the United States Copyright Office. Borrower shall promptly provide to Bank a copy of the Copyright application(s) filed with the United States Copyright Office, together with evidence of the recording of the security documents necessary for Bank to maintain the perfection and priority of its security interest in such Copyrights or Mask Works. Borrower shall provide written notice to Bank of any application filed by Borrower in the United States Patent Trademark Office for a patent or to register a trademark or service xxxx within thirty (30) days of any such filing.
6. ADDITIONAL COVENANTS: RATIFICATION OF PERFECTION CERTIFICATE. Borrower is not a party to, nor is bound by, any license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under the Loan Agreement and the other Loan Documents. In addition, the Borrower hereby certifies that no Collateral is in the possession of any third party bailee (such as at a warehouse). In the event that Borrower, after the date hereof, intends to store or otherwise deliver the Collateral to such a bailee, then Borrower shall first receive, the prior written consent of Bank and such bailee must acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank. Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate dated as of September 10, 2008 between Borrower and Bank, and acknowledges, confirms and agrees the disclosures and information above Borrower provided to Bank in the Perfection Certificate has not changed, as of the date hereof.
7. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file UCC financing statements without notice to Borrower, with all appropriate jurisdictions, as Bank deems appropriate, in order to further perfect or protect Bank’s interest in the Collateral, including a notice that any disposition of the Collateral, by either the Borrower or any other Person, shall be deemed to violate the rights of the Bank under the Code.
8. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary to reflect the changes described above.
9. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of all security or other collateral granted to the Bank, and confirms that the indebtedness secured thereby includes, without limitation, the Obligations.
10. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims, or counterclaims against Bank with respect to the Obligations, or otherwise, and that if Borrower now has, or ever did have, any offsets, defenses, claims, or counterclaims against Bank, whether known or unknown, at law or in equity, all of them are hereby expressly WAIVED and Borrower hereby RELEASES Bank from any liability thereunder.
11. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the existing Obligations, Bank is relying upon Borrower’s representations, warranties, and agreements, as set forth in the Existing Loan Documents. Except as expressly modified pursuant to this Loan Modification Agreement, the terms of the Existing Loan Documents remain unchanged and in full force and effect. Bank’s agreement to modifications to the existing Obligations pursuant to this Loan Modification Agreement in no way shall obligate Bank to make any future modifications to the Obligations. Nothing in this Loan Modification Agreement shall constitute a satisfaction of the Obligations. It is the intention of Bank and Borrower to retain as liable parties all makers of Existing Loan Documents, unless the party is expressly released by Bank in writing. No maker will be released by virtue of this Loan Modification Agreement.
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12. RIGHT OF SET-OFF. In consideration of Bank’s agreement to enter into this Loan Modification Agreement, Borrower hereby reaffirms and hereby grants to Bank, a lien, security interest and right of set off as security for all Obligations to Bank, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank or any entity under the control of Silicon Valley Bank (including a Bank subsidiary) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Bank may set off the same or any part thereof and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral securing the loan. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
13. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its properties, unconditionally, the exclusive jurisdiction of any state or federal court of competent jurisdiction in the State of New York in any action, suit, or proceeding of any kind against it which arises out of or by reason of this Loan Modification Agreement. NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK’S RIGHTS AGAINST THE BORROWER OR ITS PROPERTY.
14. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank.
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IN WITNESS WHEREOF, the parties hereto have caused this Loan Modification Agreement to be executed as of the First Loan Modification Effective Date.
| BORROWER: | ||
| MEDIDATA SOLUTIONS, INC. | ||
| By | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | EVP and CFO | |
| MEDIDATA FT, INC. | ||
| By | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | EVP and CFO | |
| BANK: | ||
| SILICON VALLEY BANK | ||
| By | /s/ Xxxx Xxxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxxx | |
| Title: | VP | |
First Loan Modification Effective Date: December 31, 2008
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EXHIBIT A
EXHIBIT B
COMPLIANCE CERTIFICATE
| TO: | SILICON VALLEY BANK | Date: | ||
| FROM: | MEDIDATA SOLUTIONS, INC. and MEDIDATA FT, INC. |
The undersigned authorized officer of Medidata Solutions, Inc. and Medidata FT, Inc. (individually and collectively, jointly and severally, the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all federal, material foreign, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.
Please indicate compliance status by circling Yes/No under “Complies” column.
| Reporting Covenant |
Required |
Complies | ||
| Monthly consolidated and consolidating financial statements with Compliance Certificate | Monthly within 30 days | Yes No | ||
| Quarterly consolidated and consolidating financial statements | Quarterly within 45 days | Yes No | ||
| Annual financial statement (CPA Audited) + XX | XXX within 150 days | Yes No | ||
| 10-Q, 10-K and 8-K | Within 5 days after filing with SEC | Yes No | ||
| A/R & A/P Agings, Deferred Revenue Report | Monthly within 30 days | Yes No | ||
| Projections | FYE within 45 days | Yes No | ||
| Below is listed (i) any material change in the composition of the intellectual property, (ii) the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark not previously disclosed to Bank, or (iii) Borrower’s knowledge of an event that materially adversely affects the value of the intellectual property (if none, state “None”):
_____________________________________________ | ||||
| Financial Covenant |
Required | Actual | Complies | |||||
| Maintain on a Quarterly Basis (unless noted otherwise): |
||||||||
| Minimum Profitability |
$ | $ | Yes No | |||||
| Minimum Liquidity (at all times, certified Monthly through and including 12/31/2009 |
$ | 5,000,000 | $ | Yes No | ||||
| Maximum Capital Expenditure (Trailing Twelve Months) Beginning on and after 09/30/2008 |
$ | 12,000,000 | $ | Yes No | ||||
| Minimum Fixed Charge Coverage Ratio (Trailing Twelve Months) Beginning on and after 12/31/2009 |
1.25:1.00 | :1.00 | Yes No | |||||
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The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate.
The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”)
| MEDIDATA FT, INC. |
BANK USE ONLY | |||||
| Received by: |
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| AUTHORIZED SIGNER | ||||||
| By: |
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Date: |
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| Name: |
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| Title: |
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Verified: |
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| AUTHORIZED SIGNER | ||||||
| Date: |
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| Compliance Status: Yes No | ||||||
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Schedule 1 to Compliance Certificate
Financial Covenants of Borrower
Dated:
| I. | Profitability (Section 6.9(a)) |
Required: A minimum Net Income (loss) of at least (not more than) the following for each quarterly period indicated below:
| Quarterly Period Ended |
Minimum Profitability | ||
| December 31, 2008 and March 31, 2009 |
$ | (2,500,000) | |
| June 30, 2009 |
$ | (1,500,000) | |
| September 30, 2009 |
$ | 1.00 | |
| December 31, 2009 and March 31, 2010 |
$ | 1,750,000 | |
| June 30, 2010, and each quarterly period of the Borrower thereafter |
$ | 3,000,000” | |
Actual:
| A. |
Net Income | $ |
Is line A equal to or greater than $ ?
| No, not in compliance | Yes, in compliance |
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| II. | Liquidity (Section 6.9(b)) |
Required: From the Effective Date through and including December 31, 2009, maintain at all times, certified to by Borrower on a monthly basis, Liquidity of at least Five Million Dollars ($5,000,000).
Actual:
| A. |
Borrower’s unrestricted cash at Bank |
$ | |||
| B. |
Total net billed accounts receivable (from most recent balance sheet) |
$ | |||
| C. |
All outstanding Indebtedness owed by Borrower to Bank |
$ | |||
| D. |
LIQUIDITY (line A plus line B minus line C |
$ | |||
Is line D equal to or greater than $5,000,000?
| No, not in compliance | Yes, in compliance |
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| III. | Capital Expenditures (Section 6.9(c)) |
Required: Beginning with the fiscal quarter ending September 30, 2008 and as of the last day of each fiscal quarter thereafter, Borrower’s Capital Expenditures for the trailing twelve month period ending on each testing date shall be equal to or less than Twelve Million Dollars ($12,000,000).
Actual:
| A. | Capital Expenditures (for the trailing twelve months ending on the date of measurement) | $ |
Is line A less than or equal to $12,000,000?
| No, not in compliance | Yes, in compliance |
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| IV. | Fixed Charge Coverage Ratio (Section 6.9(d)) |
Required: Beginning with the fiscal quarter ending December 31, 2009 and for each fiscal quarter of the Borrower thereafter, the Borrower shall maintain, to be tested quarterly, measured on a trailing four fiscal quarter basis (except as noted below), a ratio of (i) EBITDA minus unfunded Capital Expenditures minus taxes actually paid in cash to (ii) the sum of Interest Expense plus the sum of all required scheduled payments of principal on all Indebtedness of the Borrower owed to Bank plus all required scheduled payments of principal on all capital lease obligations of the Borrower of not less than 1.25 to 1.00.
Actual:
| A. |
Net Income | $ | ||
| B. |
Interest Expense | $ | ||
| C. |
To the extent deducted in the calculation of Net Income, depreciation and amortization expense | $ | ||
| D. |
Income tax expense | $ | ||
| E. |
Non-cash stock compensation expense deducted from the calculation of Net Income | $ | ||
| F. |
Non-recurring non-cash deductions from Net Income permitted by Bank | $ | ||
| G. |
EBITDA (the sum of lines A through F) | $ | ||
| H. |
Unfunded Capital Expenditures | $ | ||
| I. |
Taxes actually paid in cash | $ | ||
| J. |
Adjusted EBITDA (line G minus line H minus line I) | $ | ||
| K. |
Interest Expense | $ | ||
| L. |
Sum of all required scheduled payments of principal on all Indebtedness of the Borrower owed to Bank | $ | ||
| M. |
All required scheduled payments of principal on all capital lease obligations of the Borrower | $ | ||
| N. |
FIXED CHARGES (line K plus line L plus line M) | $ | ||
| O. |
FIXED CHARGE COVERAGE RATIO (line J divided by line N, expressed as a ratio) | :1.00 | ||
Is line O equal to or greater than 1.25:1.00?
| No, not in compliance | Yes, in compliance |
NOTE: For calculation of “Fixed Charges” on December 31, 2009, see Section 6.9(d) of the Loan Agreement.
NOTE: If Borrower is not in compliance on December 31, 2009, see Section 2.1.5(b)(ii) of the Loan Agreement (and an Event of Default shall exist).
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