Exhibit 10.7.5
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Agreement")
effective as of September 13, 1999, by and among SILICON VALLEY BANK, a
California-chartered bank ("Bank") with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and doing business in Virginia as
"Silicon Valley East" with a loan production office located at 00000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 and SKY ALLAND RESEARCH, INC., a
Maryland corporation ("Sky Alland") and THE DATA GROUP II, INC., a Maryland
corporation (each a "Borrower" and collectively, the "Borrowers").
RECITALS.
A. Borrowers and Bank have entered into that certain Loan and Security
Agreement dated May 28, 1998 (the Loan and Security Agreement as amended from
time to time, is called the "Loan Agreement"), pursuant to which Bank has agreed
to establish a line of credit in the maximum principal amount of Three Million
Five Hundred Thousand Dollars ($3,500,000) and a committed equipment line in
favor of Borrowers in the maximum principal amount of Two Million Dollars
($2,000,000).
B. Borrowers have requested that Bank extend the maturity date of the
line of credit and Bank has agreed on the condition, among others, that this
Agreement be executed and delivered by Borrowers to Bank.
C. Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrowers and Bank do hereby agree as follows:
1. RECITALS. The parties hereto acknowledge and agree that the above
Recitals are true and correct in all material respects and that the same are
incorporated herein and made a part hereof by reference.
2. REVOLVING MATURITY DATE. From and after the effective date of this
Agreement, all references in the Loan Agreement and the Loan Documents to
"Revolving Maturity Date" shall mean October 13, 1999.
4. FEES. In consideration of the Bank's agreement to enter into this
Agreement Borrower has agreed to pay Bank on the date a fee in the amount of One
Thousand Dollars ($1,000).
5. CONDITIONS PRECEDENT. This Agreement shall become effective on the
date Bank receives the following documents, each of which shall be satisfactory
in form and substance to Bank:
(a) A Fourth Amended and Restated Revolving Promissory Note
issued and delivered by the Borrowers in the form of EXHIBIT "E" attached hereto
and incorporated herein by reference, payable to the order of the Lender in the
maximum principal amount of Three Million Five Hundred Thousand Dollars
($3,500,000.00) (which Fourth Amended and Restated
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Revolving Promissory Note is sometimes referred to herein as the "Replacement
Revolving Note");
(b) Proof that Borrowers have paid all costs and expenses to
Bank in connection with this Agreement, including but not limited to Bank's
reasonable attorneys fees; and
(c) Such other information, instruments, opinions, documents,
certificates and reports as Bank may deem necessary.
6. REPLACEMENT NOTE. EXHIBIT E to the Loan Agreement is hereby replaced
in its entirety with EXHIBIT "E" attached hereto. The Borrowers shall execute
and deliver to the Lender on the date hereof the Replacement Revolving Note in
substitution for and not satisfaction of, the issued and outstanding Revolving
Promissory Note and the Replacement Revolving Note shall be the "Revolving
Promissory Note" for all purposes of the Loan Documents. The Replacement
Revolving Note shall not operate as a novation of the joint and several
Obligations of the Borrowers, or nullify, discharge, or release any such
Obligations or the continuing contractual relationship of the Borrowers in
accordance with the provisions of the Loan Documents. All references in the
Financing Agreements to the "Revolving Promissory Note" shall be deemed to refer
to the Replacement Revolving Note.
7. REPRESENTATIONS. Borrowers hereby confirm that:
(a) The covenants set forth in Sections 6 and 7 of the Loan
Agreement, are true and correct as of the date hereof;
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(b) The Borrowers have no defenses, rights of setoff, claims,
counterclaims, or causes of action of any kind or nature whatsoever against the
Bank or any agent, attorney, legal representative, predecessor-in-interest, or
affiliate of the Bank, directly or indirectly in any manner connected with,
pursuant to, or by virtue of the Obligations or any of the Loan Documents, and
TO THE EXTENT ANY SUCH DEFENSES, RIGHTS OF SETOFF, CLAIMS, COUNTERCLAIMS, OR
CAUSES OF ACTION EXIST, SUCH DEFENSES, RIGHTS, CLAIMS, COUNTERCLAIMS, AND CAUSES
OF ACTION ARE HEREBY FOREVER WAIVED, DISCHARGED AND RELEASED; and
(c) No defaults exist under the Loan Documents.
8. COUNTERPARTS. This Agreement may be executed in any number of
duplicate originals or counterparts, each of which duplicate original or
counterpart shall be deemed to be an original and all taken together shall
constitute one and the same instrument.
9. LOAN DOCUMENTS; GOVERNING LAW; ETC. This Agreement is one of the
Loan Documents defined in the Loan Agreement and shall be governed and construed
in accordance with the laws of the State of Maryland. The headings and captions
in this Agreement are for the convenience of the parties only and are not a part
of this Agreement.
10. ACKNOWLEDGMENTS. Borrowers hereby confirm to Bank the
enforceability and validity of each of the Loan Documents. In addition,
Borrowers hereby agree to the execution and delivery of this Agreement and the
terms and provisions, covenants or agreements contained in this Agreement shall
not in any manner release, impair, lessen, modify, waive or otherwise limit the
joint and several liability and obligations of Borrowers under the terms of any
of the
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Loan Documents, except as otherwise specifically set forth in this Agreement.
Borrowers issue, ratify and confirm the representations, warranties and
covenants contained in the Loan Documents.
11. MODIFICATIONS. This Agreement may not be supplemented, changed,
waived, discharged, terminated, modified or amended, except by written
instrument executed by the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
WITNESS OR ATTEST: SKY ALLAND RESEARCH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Operating Officer
WITNESS OR ATTEST: THE DATA GROUP II, INC.
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
SILICON VALLEY BANK
By: /s/ Xxxx XxXxxxxx
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Xxxx XxXxxxxx
Vice President
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