FIRST LOAN MODIFICATION AGREEMENT
Exhibit
10.3
This
First Loan Modification Agreement (this “Loan Modification Agreement”) is
entered into as of February 1st, 2007, by and between 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 000 Xxxxxxxxxx Xxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxx 00000 (“Bank”) and VOXWARE,
INC.,
a
Delaware corporation with its chief executive office located at 000 Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 (“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 January
3, 2007, but effective as of December 29, 2006, evidenced by, among other
documents, a certain Amended and Restated Loan and Security Agreement dated
as
of January 3, 2007, but effective as of December 29, 2006, 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 and the Intellectual Property Collateral as described in a
certain Intellectual Property Security Agreement dated as of December 29, 2003
(as amended, the “IP Security 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.
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A.
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Modifications
to Loan Agreement.
The Loan Agreement shall be amended by deleting the following provision
appearing as Section 2.1.5(a)
thereof:
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“(a) Availability.
Bank
shall make one (1) term loan available to Borrower in an amount
up
to the Term Loan on or before March 31, 2007, subject to the satisfaction
of the
terms
and conditions of this Agreement.”
and
inserting in lieu thereof the following:
“(a) Availability.
Bank
shall make a total of two (2) term loans available to Borrower
in an amount up to the Term Loan on or before March 31, 2007, subject to
the satisfaction
of the terms and conditions of this Agreement.”
4. FEES.
Borrower shall 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 the IP Security Agreement and acknowledges, confirms and
agrees that said IP Security Agreement contains an accurate and complete listing
of all Intellectual Property Collateral as defined in said IP Security
Agreement, and shall remain in full force and effect.
6. RATIFICATION
OF PERFECTION CERTIFICATE.
Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms
and disclosures contained in a certain Perfection Certificate dated as of May
24, 2006, 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. CONSISTENT
CHANGES.
The
Existing Loan Documents are hereby amended wherever necessary to reflect the
changes described above.
8. 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.
9. 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.
10.
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.
11. COUNTERSIGNATURE.
This
Loan Modification Agreement shall become effective only when it shall have
been
executed by Borrower and Bank.
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remainder of this page is intentionally left blank]
This
Loan
Modification Agreement is executed as a sealed instrument under the laws of
the
Commonwealth of Massachusetts as of the date first written above.
| BORROWER: | BANK: | |||
| VOXWARE, INC. | SILICON VALLEY BANK | |||
| By: | /s/ Xxxx Commons | By: | /s/ Xxxxxxx Xxxxx | |
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| Name: | Xxxx Commons | Name: | Xxxxxxx Xxxxx | |
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| Title: | CFO | Title: | Relationship Manager | |
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The
undersigned, VERBEX
ACQUISITION CORPORATION,
a
Delaware corporation (“Guarantor”) hereby: (i) ratifies, confirms and reaffirms,
all and singular, the terms and conditions of (A) a certain Unlimited Guaranty
of the obligations of Borrower to Bank dated January 27, 2004 (the “Guaranty”),
(B) a certain Security Agreement by Guarantor in favor of Bank dated January
27,
2004 (the “Security Agreement”);(ii) acknowledges, confirms and agrees that the
Guaranty, and Security Agreement shall remain in full force and effect and
shall
in no way be limited by the execution of this Loan Modification Agreement or
any
other documents, instruments and/or agreements executed and/or delivered in
connection herewith; and (iii) acknowledges, confirms and agrees that the
obligations of Borrower to Bank under the Guaranty include, without limitation,
all Obligations of Borrower to Bank under the Loan Agreement, as amended by
this
Loan Modification Agreement.
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VERBEX
ACQUISITION CORPORATION
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| By: |
/s/
Xxxx Commons
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| Name: | Xxxx Commons | ||
