EXHIBIT 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This First Amendment (the "First Amendment") to the Amended and Restated
Accounts Receivable Financing Agreement is entered into as of June 24, 2003, by
and among (i) 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 Xxxxxx Executive Park, Suite
200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under
the name "Silicon Valley East" ("Bank") and (ii) SATCON TECHNOLOGY CORPORATION,
a Delaware corporation with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx (FAX 000-000-0000); SATCON POWER SYSTEMS, INC., Delaware
corporation with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx;
SATCON APPLIED TECHNOLOGY, INC., a Delaware corporation with offices located at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx; SATCON ELECTRONICS, INC., a Delaware
corporation with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx;
and SATCON POWER SYSTEMS CANADA LTD. a corporation organized under the laws of
the Province of Ontario, Canada with offices located at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx (individually and collectively, jointly and severally,
"Borrower").
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 CERTAIN AMENDED AND RESTATED ACCOUNTS RECEIVABLE FINANCING
AGREEMENT DATED AS OF APRIL 4, 2003 (AS AMENDED FROM TIME TO TIME, THE "LOAN
AGREEMENT"). CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE
THE SAME MEANING AS IN THE LOAN AGREEMENT.
Hereinafter, all indebtedness and obligations owing by Borrower to Bank shall be
referred to as the "Obligations".
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".
DESCRIPTION OF CHANGE IN TERMS.
MODIFICATIONS TO LOAN AGREEMENT.
THE LOAN AGREEMENT SHALL BE AMENDED BY DELETING THE FOLLOWING DEFINITION
APPEARING IN SECTION 1, THEREOF, AND INSERTING IN LIEU THEREOF THE
FOLLOWING:
""APPLICABLE RATE " is a per annum rate equal to the Prime Rate
plus three percent (3.0%)."
and inserting in lieu thereof the following:
""APPLICABLE RATE " is a per annum rate equal to the Prime Rate
plus four percent (4.0%)."
THE LOAN AGREEMENT SHALL BE DELETING THE FOLLOWING TEXT APPEARING IN SECTION
3.4, THEREOF:
"On each Reconciliation Day, Borrower will pay to Bank a
Collateral Handling Fee, equal to 0.40% per month of the average
daily Financed Receivable Balance outstanding during the
applicable Reconciliation Period."
and inserting in lieu thereof the following:
"On each Reconciliation Day, Borrower will pay to Bank a
Collateral Handling Fee, equal to 0.45% per month of the average
daily Financed Receivable Balance outstanding during the
applicable Reconciliation Period."
FEES. THE BORROWER SHALL REIMBURSE BANK FOR ALL LEGAL FEES AND EXPENSES INCURRED
IN CONNECTION WITH THIS AMENDMENT TO THE EXISTING LOAN DOCUMENTS.
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 DECEMBER 19, 2002
BETWEEN BORROWER 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.
CONSISTENT CHANGES. THE EXISTING LOAN DOCUMENTS ARE HEREBY AMENDED WHEREVER
NECESSARY TO REFLECT THE CHANGES DESCRIBED ABOVE.
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.
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.
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 FIRST AMENDMENT, 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 FIRST
AMENDMENT IN NO WAY SHALL OBLIGATE BANK TO MAKE ANY FUTURE MODIFICATIONS TO THE
OBLIGATIONS. NOTHING IN THIS FIRST AMENDMENT 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 FIRST
AMENDMENT.
COUNTERSIGNATURE. THIS FIRST AMENDMENT SHALL BECOME EFFECTIVE ONLY WHEN IT SHALL
HAVE BEEN EXECUTED BY BORROWER AND BANK (PROVIDED, HOWEVER, IN NO EVENT SHALL
THIS FIRST AMENDMENT BECOME EFFECTIVE UNTIL SIGNED BY AN OFFICER OF BANK IN
CALIFORNIA).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
This First Amendment is executed as a sealed instrument under the laws of
the Commonwealth of Massachusetts as of the date first written above.
BORROWER:
SATCON TECHNOLOGY CORPORATION
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON POWER SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON APPLIED TECHNOLOGY, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON ELECTRONICS, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON POWER SYSTEMS CANADA LTD.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
BANK:
SILICON VALLEY BANK
By /s/ Xxxx X. Xxxx
------------------------------
Title Vice President
---------------------------
SECOND AMENDMENT TO AMENDED AND RESTATED
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This Second Amendment (the "Second Amendment") to the Amended and Restated
Accounts Receivable Financing Agreement is entered into as of August 11, 2003,
by and among (i) 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 Xxxxxx Executive Park, Suite
200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, doing business under
the name "Silicon Valley East" ("Bank") and (ii) SATCON TECHNOLOGY CORPORATION,
a Delaware corporation with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx (FAX 000-000-0000); SATCON POWER SYSTEMS, INC., Delaware
corporation with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx;
SATCON APPLIED TECHNOLOGY, INC., a Delaware corporation with offices located at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx; SATCON ELECTRONICS, INC., a Delaware
corporation with offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx;
and SATCON POWER SYSTEMS CANADA LTD. a corporation organized under the laws of
the Province of Ontario, Canada with offices located at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx (individually and collectively, jointly and severally,
"Borrower").
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 CERTAIN AMENDED AND RESTATED ACCOUNTS RECEIVABLE FINANCING
AGREEMENT DATED AS OF APRIL 4, 2003, AS AMENDED BY A FIRST AMENDMENT TO AMENDED
AND RESTATED ACCOUNTS RECEIVABLE FINANCING AGREEMENT DATED AS OF JUNE 24, 2003
(AS AMENDED FROM TIME TO TIME, THE "LOAN AGREEMENT"). CAPITALIZED TERMS USED BUT
NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE SAME MEANING AS IN THE LOAN
AGREEMENT.
Hereinafter, all indebtedness and obligations owing by Borrower to Bank shall be
referred to as the "Obligations".
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".
DESCRIPTION OF CHANGE IN TERMS.
ACKNOWLEDGMENT OF DEFAULT; FOREBEARANCE BY BANK.
BORROWER ACKNOWLEDGES THAT IT IS CURRENTLY IN DEFAULT UNDER THE LOAN AGREEMENT
BY ITS FAILURE TO COMPLY WITH THE FINANCIAL COVENANT SET FORTH IN
SECTION 6.3(N) THEREOF. BANK, HOWEVER, HEREBY AGREES TO FORBEAR FROM
EXERCISING ITS RIGHTS AND REMEDIES WITH RESPECT TO SUCH DEFAULT UNTIL
THE EARLIER TO OCCUR OF (i) AN EVENT OF DEFAULT UNDER THE LOAN
AGREEMENT (OTHER THAN THE FAILURE OF THE BORROWER TO COMPLY WITH THE
ABOVE COVENANT) OR (ii) AUGUST 31, 2003. THE BORROWER HEREBY
ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
NOTHING IN THIS SECTION OR ANYWHERE IN THIS SECOND AMENDMENT SHALL BE
DEEMED OR OTHERWISE CONSTRUED AS A WAIVER BY THE BANK OF ANY OF ITS
RIGHTS AND REMEDIES PURSUANT TO THE EXISTING LOAN DOCUMENTS,
APPLICABLE LAW OR OTHERWISE.
WAIVERS.
BANK HEREBY WAIVES BORROWER'S EXISTING DEFAULTS UNDER THE LOAN AGREEMENT BY
VIRTUE OF BORROWER'S FAILURE TO COMPLY WITH THE FINANCIAL COVENANT SET
FORTH IS SECTION 6.3(M) THEREOF AS OF THE MONTH ENDING JUNE 30, 2003.
BANK'S WAIVER OF BORROWER'S COMPLIANCE OF SAID AFFIRMATIVE COVENANT
SHALL APPLY ONLY TO THE FOREGOING SPECIFIC PERIOD.
FEES. BORROWER SHALL PAY TO BANK A MODIFICATION FEE EQUAL TO SEVEN THOUSAND FIVE
HUNDRED DOLLARS ($7,500.00), WHICH FEE SHALL BE DUE ON THE DATE HEREOF AND SHALL
BE DEEMED FULLY EARNED AS OF THE DATE HEREOF. THE BORROWER SHALL ALSO REIMBURSE
BANK FOR ALL LEGAL FEES AND EXPENSES INCURRED IN CONNECTION WITH THIS AMENDMENT
TO THE EXISTING LOAN DOCUMENTS.
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 DECEMBER 19, 2002
BETWEEN BORROWER 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.
CONSISTENT CHANGES. THE EXISTING LOAN DOCUMENTS ARE HEREBY AMENDED WHEREVER
NECESSARY TO REFLECT THE CHANGES DESCRIBED ABOVE.
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.
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.
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 SECOND AMENDMENT, 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 SECOND
AMENDMENT IN NO WAY SHALL OBLIGATE BANK TO MAKE ANY FUTURE MODIFICATIONS TO THE
OBLIGATIONS. NOTHING IN THIS SECOND AMENDMENT 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 SECOND
AMENDMENT.
COUNTERSIGNATURE. THIS SECOND AMENDMENT SHALL BECOME EFFECTIVE ONLY WHEN IT
SHALL HAVE BEEN EXECUTED BY BORROWER AND BANK (PROVIDED, HOWEVER, IN NO EVENT
SHALL THIS SECOND AMENDMENT BECOME EFFECTIVE UNTIL SIGNED BY AN OFFICER OF BANK
IN CALIFORNIA).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
This Second Amendment is executed as a sealed instrument under the laws of
the Commonwealth of Massachusetts as of the date first written above.
BORROWER:
SATCON TECHNOLOGY CORPORATION
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON POWER SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON APPLIED TECHNOLOGY, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON ELECTRONICS, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
SATCON POWER SYSTEMS CANADA LTD.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title VP & CFO
---------------------------
BANK:
SILICON VALLEY BANK
By /s/ Xxxx X. Xxxx
------------------------------
Title Vice President
---------------------------
