EXHIBIT 10.28
LOAN MODIFICATION AND ASSUMPTION AGREEMENT
This Loan Modification Agreement is entered into as of April 14, 1998, by
and among Exodus Communications, Inc., a California corporation ("Exodus
California"), Exodus Communication, Inc., a Delaware corporation ("Exodus
Delaware") whose address is 0000 Xxx Xxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000,
and Silicon Valley Bank ("Bank") whose address is 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, XX 00000.
1. WHEREAS, Among other indebtedness which may be owing by Exodus California
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to Bank, Exodus California is indebted to Bank pursuant to, among other
documents, a Loan and Security Agreement, dated June 14, 1996, together with all
schedules thereto (the "Loan Agreement"), as may be amended from time to time.
The Loan Agreement provided for, among other things, a Committed Line in the
original principal amount of One Million Dollars ($1,000,000) (the "Revolving
Facility") and an equipment loan in the original principal amount of Eight
Hundred Fifty Thousand Dollars ($850,000) (the "Equipment Line"). The Revolving
Facility has been modified pursuant to, among other documents, an Amendment to
Loan and Security Agreement dated December 8, 1997, pursuant to, among other
things the Committed Line was increased to Five Million Dollars ($5,000,000).
Defined terms used but not otherwise defined herein shall have the same meanings
as in the Loan Agreement.
2. WHEREAS, hereinafter, all indebtedness owing by Exodus California to Bank
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shall be referred to as the "Indebtedness."
3. WHEREAS, repayment of the Indebtedness is secured by the Collateral as
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defined in the Loan Agreement, and a Collateral Assignment, Patent Mortgage and
Security Agreement dated June 13, 1996.
4. WHEREAS, hereinafter, the above-described security documents and
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guaranties, together with all other documents securing repayment of the
Indebtedness shall be referred to as the "Security Documents". Hereinafter, the
Security Documents, together with all other documents evidencing or securing the
Indebtedness shall be referred to as the "Existing Loan Documents".
5. WHEREAS, Exodus California merged with and into Exodus Delaware. The sole
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purpose of the merger was the re-incorporation of Exodus California in the State
of Delaware (the "Reincorporation").
6. WHEREAS, Exodus Delaware desires to assume the Indebtedness owing by Exodus
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California, prior to the Reincorporation, to Bank under the Existing Loan
Documents (the "Assumption").
NOW THEREFORE, in consideration of the foregoing and the agreements contained
herein, the parties agree as follows:
A.
1. Assumption. Exodus Delaware hereby assumes and agrees to pay and
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perform when due all present and future indebtedness, liabilities and
obligations under, based upon, or arising out of the Existing Loan Documents.
Exodus Delaware agrees to honor, perform and comply with, in all respects, all
terms and provisions of all of the Existing Loan Documents. All references in
the Existing Loan Documents to "Borrower" shall be deemed to refer to Exodus
Delaware. Furthermore, all present and future obligations of Exodus California
shall be deemed to refer to all present and future obligations of Exodus
Delaware. Exodus Delaware shall execute any and all documents required by Bank
to perfect Bank's security interest in Collateral as described in the Loan
Agreement.
2. Obligations. Exodus Delaware acknowledges that the obligations are due
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and owing to Bank from Exodus California, and now on the part of Exodus
Delaware, without any defense, offset or counterclaim of any kind or nature
whatsoever as of the date hereof.
3. Representations and Warranties. Exodus Delaware hereby represents and
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warrants to Bank that all representations and warranties in the Existing Loan
Documents made on the part of Exodus California are true
and correct on the date hereof with respect to Exodus Delaware, with the same
force and effect as if Exodus Delaware were named as the Borrower in the
Existing Loan Documents in place of Exodus California.
4. Consent. Bank hereby consents to the Reincorporation and waives any
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and all defaults or Events of Default under the Existing Loan Documents that may
have occurred or shall occur as a result of the Reincorporation. The execution
and delivery in this Loan Modification and Assumption Agreement shall constitute
a cure of any such default or Event of Default. Bank's consent to the current
Reincorporation shall in no way be deemed a consent to future reincorporations
by Borrower.
B. DESCRIPTION OF CHANGE IN TERMS.
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1. Modification(s) to Loan Agreement.
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a. The term "Committed Line" as defined in Section 1.1 entitled
"Definitions" is hereby amended to mean Seven Million Dollars ($7,000,000).
b. Item "(a)" of Section 2.1.1 entitled "Letters of Credit" is hereby
amended in its entirety to read as follows:
Subject to the terms and conditions of this Agreement, Bank agrees to issue or
cause to be issued letters of credit for the account of Borrower in an aggregate
face amount not to exceed (i) the lesser of the Committed Line or the Borrowing
Base minus (ii) the then outstanding principal balance of the Advances provided
that the face amount of outstanding letters of credit (including drawn but
unreimbursed letters of credit) shall not in any case exceed Seven Million
Dollars ($7,000,000). Each such letter of credit shall have an expiry date no
later than one hundred eighty (180) days after the Revolving Maturity Date
provided that Borrower's letter of credit reimbursement obligation shall be
secured by cash on terms acceptable to Bank at any time after the Revolving
Maturity Date if the term of the Agreement is not extended by Bank.
Notwithstanding the foregoing, Borrower shall provide Bank with a cash secured
letter, in form and substance acceptable to Bank, to support any letters of
credit with an expiry date later than 180 days after the Revolving Maturity
Date. All such letters of credit shall be, in form and substance, acceptable to
Bank in its sole discretion and shall be subject to the terms and conditions of
Bank's form of application and letter of credit agreement.
c. Item "(a)" under Section 2.3 entitled "Interest Rates, Payments, and
Calculations" is hereby amended in its entirety to read as follows:
Except as set forth in Section 2.3(b), any Advances shall bear interest at
a rate equal to the Prime Rate. Except as set forth in Section 2.3(b), any
Equipment Advances shall bear interest at a rate equal to two and one-half
(2.50) percentage points above the Prime Rate.
C. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
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necessary to reflect the changes described above.
D. PAYMENT OF LOAN FEE. Borrower shall pay to Bank a fee in the amount of
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Three Thousand Two Hundred Forty Seven Dollars ($3,247) (the "Loan Fee"), plus
all out-of-pocket expenses.
E. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor signing
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below) agrees that, as of this date, it has no defenses against the obligations
to pay any amounts under the Indebtedness.
F. CONTINUING VALIDITY. Borrower (and each guarantor and pledgor signing
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below) understands and agrees that in modifying the existing Indebtedness, 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 and Assumption Agreement, the terms of the Existing
Loan Documents remain unchanged and in full force and effect. Bank's agreement
to modifications to the existing Indebtedness pursuant to this Loan Modification
and Assumption Agreement in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Loan Modification and
Assumption Agreement shall constitute a satisfaction of the Indebtedness. It
is the intention of Bank and Borrower to retain as liable parties all makers and
endorsers of Existing Loan Documents, unless the party is expressly released by
Bank in writing. No maker, endorser, or guarantor will be released by virtue of
this Loan Modification and Assumption Agreement. The terms of this paragraph
apply not only to this Loan Modification and Assumption Agreement, but also to
all subsequent loan modification agreements.
G. CONDITION. The effectiveness of this Loan Modification and Assumption
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Agreement is conditioned upon payment of the Loan Fee.
This Loan Modification and Assumption Agreement is executed as of the date
first written above.
EXODUS CALIFORNIA: BANK:
EXODUS COMMUNICATIONS, INC., SILICON VALLEY BANK,
A CALIFORNIA CORPORATION
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxx
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Title: CFO/COO Title: SVP
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EXODUS DELAWARE:
EXODUS COMMUNICATIONS, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: CFO/COO
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