Amendment to Loan Documents
Exhibit
10.1
Silicon
Valley Bank
Amendment
to Loan Documents
Borrower: Internap
Network Services Corporation
Date: December
27, 2005
THIS
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. Modified
Maximum Revolving Credit Limit. The
Maximum Revolving Credit Limit set forth in Section 1 of the Amended and
Restated Schedule to Loan and Security Agreement is hereby amended from
“$15,000,000”
to
“$10,000,000”.
2. Modified
Letter of Credit Sublimit. The
Letter of Credit Sublimit set forth in Section 1 of
the
Amended and Restated Schedule to Loan and Security Agreement is hereby
amended
from “$5,000,000”
to
“$6,000,000”.
3. Extension
of Maturity Date with Respect to Revolving Loans. The
Maturity Date with respect to the Revolving Loans and related Obligations is
hereby amended from “December
28, 2005”
to
“December
27, 2006”.
4. Deletion
of Minimum
Cash EBITDA Financial Covenant. The
Minimum Cash EBITDA Financial Covenant set forth in Section 5 of the Amended
and
Restated Schedule to Loan and Security Agreement is hereby deleted.
5. Addition
of Minimum Tangible Net Worth Financial Covenant. The
following Minimum Tangible Net Worth Financial Covenant is hereby added to
Section 5 of the Amended and Restated Schedule to Loan and Security Agreement
and shall read as follows:
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Minimum
Tangible
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Net
Worth:
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Borrower
shall maintain a Tangible Net Worth of not less than $60,000,000
plus (i) 50% of all
consideration received after the date hereof for new issues of equity
securities and new subordinated debt of the Borrower, plus (ii) 50%
of the
Borrower’s
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| Silicon Valley Bank |
Amendment
to Loan
Documents
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net
income in each fiscal quarter ending after the date hereof. Increases
in
the Minimum
Tangible Net Worth Covenant based on consideration received for
equity
securities and subordinated debt of the Borrower shall be effective
as of
the end of the month in which such consideration is received, and
shall
continue effective thereafter. Increases in the Minimum
Tangible Net Worth Covenant based on net income shall be effective
on the
last day of the fiscal quarter in which said net income is
realized,
and shall continue effective thereafter.
In
no event shall the Minimum
Tangible Net Worth Covenant
be
decreased.
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6. Addition
of Tangible Net Worth and Related Definitions. The
following definitions are hereby added to the “Definitions” portion of Section 5
of the Amended and Restated Schedule to Loan and Security Agreement and shall
read as follows
"Tangible
Net Worth" is, on any date, the consolidated total assets of Borrower and its
Subsidiaries plus the principal amount of Subordinated Debt of Borrower minus,
(i) any amounts attributable to (a) net goodwill, (b) net intangible items
such
as unamortized debt discount and expense, Patents, trade and service marks
and
names, Copyrights and research and development expenses except prepaid expenses,
and (c) reserves not already deducted from assets, (ii) cumulative non-cash
stock compensation expenses beginning 1/1/06, and (iii) Total
Liabilities.
"Total
Liabilities" is on any day, obligations that should, under GAAP, be classified
as liabilities on Borrower's consolidated balance sheet, but excluding all
Subordinated Debt other than the then-current portion of such Subordinated
Debt
allowed to be paid.
"Copyrights"
are all copyright rights, applications or registrations and like protections
in
each work or authorship or derivative work, whether published or not (whether
or
not it is a trade secret) now or later existing, created, acquired or
held.
"Subordinated
Debt" is debt incurred by Borrower subordinated in right of payment to
Borrower's indebtedness owed to Bank on terms satisfactory to Bank and which
is
reflected in a written agreement in a manner and form acceptable to Bank and
approved by Bank in writing.
7. Fee. In
consideration for Silicon entering into this Amendment, Borrower shall
concurrently pay Silicon a fee in the amount of $40,000, 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
operating account.
| Silicon Valley Bank |
Amendment
to Loan
Documents
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8. 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.
9. 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.
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Borrower:
By
/s/ Xxxxx X. Xxxxxx
President
or Vice President
By____________________________
Secretary
or Ass't Secretary
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Silicon:
SILICON
VALLEY BANK
By
/s/ Xxxxxx Xxxxxxxx
Title
Senior Vice President
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