EXHIBIT 10.14
FIRST AMENDMENT TO
SUBORDINATION AND
INTERCREDITOR AGREEMENT
Amendment dated as of June 28, 2001 by and among the parties whose names
appear below (this "Amendment") to a certain Intercreditor Agreement (as defined
below). Unless otherwise defined below, capitalized terms used in this
Agreement shall have the respective meanings set forth in the Intercreditor
Agreement.
RECITALS
WHEREAS, the Original Parties entered into the Intercreditor Agreement in
connection with a Loan Agreement dated as of September 26, 1997, as amended to
date, among the Bank and Lionbridge Technologies Holdings, B.V. and Lionbridge
Technologies, B.V. (together, the "Dutch Companies") which Loan Agreement
provided for certain revolving credit facilities to the Dutch Companies (the
"Existing Credit Facilities"); and
WHEREAS, the Dutch Companies and certain affiliates thereof now wish the
Bank to provide certain new revolving credit facilities (the "New Credit
Facilities"); and
WHEREAS, the Bank is willing to provide the New Credit Facilities upon the
terms set forth in the Loan Documents (as defined below) relating to such New
Credit Facilities and on the further condition that the Original Parties and the
Additional Parties enter into this Amendment in order to confirm that the terms
of subordination between the Bank and the Purchasers set forth in the
Intercreditor Agreement apply to such New Credit Facilities; and
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as follows:
Section 1. Definitions.
As used in this Amendment, capitalized terms used in this Amendment shall
have the respective meanings set forth in the Intercreditor Agreement, except as
otherwise defined above and except the following capitalized terms shall have
the following respective meanings:
"Additional Parties" means Lionbridge Technologies Ireland, INT'X.xxx,
Inc., International Language Engineering Corporation, Harvard Translations,
Inc. and Lionbridge Technologies California, Inc.
"Intercreditor Agreement" means that certain Subordination and
Intercreditor Agreement dated as of March 9, 1999 by and among the Original
Parties.
"Original Parties" means the parties to the Intercreditor Agreement
including the Bank, the Purchasers and the Dutch Companies.
Section 2. Amendment of Intercreditor Agreement.
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a. The definition of "Borrowers" appearing in the first whereas
clause on page one of the Intercreditor Agreement is hereby amended and restated
in its entirety as follows: "'Borrowers' shall mean (a) the Domestic Borrowers
(as defined below) and (b) the Foreign Borrowers (as defined below)."
b. The definition of "Loan Documents" set forth in the Intercreditor
Agreement is hereby amended and restated in its entirety as follows:
"Loan Documents shall mean (a) the Loan Agreement dated as of June 28,
2001 by and among the Bank and the Dutch Companies and Lionbridge
Technologies Ireland (together, the "Foreign Borrowers") and (b) that
certain Loan and Security Agreement dated as of June 28, 2001 by and among
the Bank and Int'x.xxx, Inc., International Language Engineering
Corporation, Harvard Translations, Inc. and Lionbridge Technologies
California, Inc. (the "Domestic Borrowers"), in each case together with all
related instruments, promissory notes, security documents, guarantees and
any other related documents, as the same may be amended, modified,
supplemented or restated from time to time."
c. There is hereby inserted at the end of the second paragraph of
Section 2.5 the words "shall be permitted".
d. There is hereby inserted at the end of Section 2.5 the following
new paragraph:
"Notwithstanding anything contained in this Section 2 or in Section 4 to the
contrary on or about December 15, 2001, the Company may make a single, final
payment of all outstanding obligations with respect to the Subordinated
Liabilities and LTHI may make a single, final payment of its outstanding
subordinated indebtedness to the Purchasers under the US Purchase Agreement,
provided that (A) no Event of Default shall have occurred and be continuing
at such time or be reasonably expected to arise therefrom; (B) such payment
together with any contemporaneous payment of subordinated indebtedness of
LTHI does not exceed $1,000,000 in the aggregate, and (C) no proceeds of any
advance or loan under the Loan Documents is used for such purpose, and
provided further that the provisions of this sentence are not intended and
shall not constitute a waiver on the part of the Bank or an amendment with
respect to any other restriction imposed by the Bank on the Borrower or LTHI
with regard to prohibited payments of any other subordinated indebtedness."
e. In connection with the termination of the Bank Foreign Guaranties
and the Bank US Guaranties in conjunction with the termination of the Existing
Credit Facilities, the
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captions and text under Sections 4.1 and 4.2 of the Intercreditor Agreement are
hereby deleted and there is hereby inserted after each Section the words "Not
Utilized."
f. Section 4.3 of the Intercreditor Agreement is hereby amended by
inserting at the end of such section the following additional sentence:
"In addition to the foregoing, the term "Permitted Payments" shall include
any other payments of expenses and liabilities of LTHI in the ordinary
course of business or any advances by LTHI to any of its Subsidiaries in
the ordinary course of business, but in each case only to the extent that
such payments or advances would not have a material adverse effect on the
Borrowers or LTHI or on the prospect of repayment of the liabilities of the
Borrowers to the Bank under the Loan Documents or on the prospect of
satisfaction of the obligations of LTHI to the Bank under any guaranty on
its part of the obligations of the Borrowers to the Bank, provided,
however, for purposes of this sentence, the foregoing shall in no event
include any payments in respect of the Subordinated Liabilities or other
subordinated indebtedness of LTHI or the Company which matters are, for
purposes of the definition of "Permitted Payments" herein, addressed
exclusively by the second sentence of this Section 4.3."
g. Section 4.5 of the Intercreditor Agreement is hereby amended and
restated in its entirety as follows:
"4.5 Additional Guarantees. Subject to the provisions of the last
sentence of this Section 4.5, the Senior Lender consents to the right of
the Purchasers under the Purchase Agreement and the US Purchase Agreement,
to require, in each case, any newly formed or acquired subsidiary of the
Company or LTHI to execute and deliver a guarantee to such party on
substantially the same terms as the guarantees previously delivered in
connection with such documents (collectively, the "Additional Guarantees").
The Purchasers, the Senior Lender, the Company and LTHI agree that in the
event any Additional Guarantee is required by the Purchasers as
contemplated by the preceding sentence, Additional Guarantees on
substantially the same terms shall be executed and delivered
contemporaneously to the Senior Lender."
Section 3. Confirmation of Subordination, etc.
The parties confirm that the terms of the Intercreditor Agreement
(including, without limitation the provisions therein relating to subordination
and the restrictions on distributions) shall apply to the New Credit Facilities
evidenced by the Loan Documents on the same basis as such terms applied to the
Existing Credit Facilities, notwithstanding the fact that the structure of the
New Credit Facilities is different from the Existing Credit Facilities in that,
among other things, the New Credit Facilities are comprised of two separate
credit facilities, one for the Foreign Borrowers and one for the Domestic
Borrowers, and that certain affiliates of the Dutch Companies (some of which
were guarantors under the Existing Credit Facilities) are borrowers under the
New Credit Facilities. Lionbridge Technologies, Inc. (formerly Lionbridge
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Technologies Holdings, Inc.), which issued its Senior Subordinated Notes to the
Purchasers, is entering into this Agreement in connection with its guaranty of
the New Credit Facilities.
Section 4. Joinder of Additional Parties.
The Additional Parties shall as of the date first written above each become
party to and bound by the terms of the Subordination Agreement as amended
hereby.
Section 5. Miscellaneous.
Except as amended hereby, the Subordination Agreement shall remain in full
force and effect. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, and all of which
counterparts taken together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
ORIGINAL PARTIES:
SILICON VALLEY BANK
BY: /s/ Xxxx X. Xxxxxxx, Xx.
--------------------------
Name:
Title:
XXXXXX XXXXXXX VENTURE INVESTORS
ANNEX, L.P.
BY: XXXXXX XXXXXXX VENTURE PARTNERS
II, L.P., its General Partner
By: XXXXXX XXXXXXX VENTURE CAPITAL
II, INC., Managing General Partner
By: /s/ Xxx X. xx Xxxxxx
--------------------
Name: Xxx X. xx Xxxxxx
Title: Chief Executive Officer
XXXXXX XXXXXXX VENTURE CAPITAL FUND II
ANNEX, L.P.,
By: XXXXXX XXXXXXX VENTURE CAPITAL
II, L.P., its General Partner
By: XXXXXX XXXXXXX VENTURE
CAPITAL II, INC., Managing General
Partner
By: /s/ Xxx X. xx Xxxxxx
--------------------
Name: Xxx X. xx Xxxxxx
Title: Chief Executive Officer
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LIONBRIDGE TECHNOLOGIES HOLDINGS, B.V.
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
LIONBRIDGE TECHNOLOGIES, B.V.
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
LIONBRIDGE TECHNOLOGIES, INC.
(f/k/a Lionbridge Technologies Holdings, Inc.)
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
LIONBRIDGE TECHNOLOGIES IRELAND
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
LIONBRIDGE TECHNOLOGIES CALIFORNIA, INC.
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
LIONBRIDGE AMERICA, INC.
(f/k/a Lionbridge Technologies, Inc.)
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
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LIONBRIDGE K.K.
(f/k/a Lionbridge Japan K.K.)
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
JAPANESE LANGUAGE SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
LIONBRIDGE TECHNOLOGIES SARL
(f/k/a Lionbridge Technologies (France)
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
ADDITIONAL PARTIES:
INT'X.xxx, INC.
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
INTERNATIONAL LANGUAGE ENGINEERING
CORPORATION
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman, CEO and President
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HARVARD TRANSLATIONS, INC.
BY: /s/ Xxxx X. Xxxxx
-----------------
Name:
Title:
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