Attached files
Exhibit
10.1
FIRST
AMENDMENT
TO
LOAN
AND SECURITY AGREEMENT
THIS FIRST AMENDMENT to Loan
and Security Agreement (this “Amendment”) is
entered into this 13th day of July, 2009, by and between Silicon Valley
Bank (“Bank”)
and Betawave Corporation, a Nevada corporation (“Borrower”),whose
address is 706 Mission Street, 10th Floor, San Francisco, CA 94103.
Recitals
A. Bank
and Borrower have entered into the Loan and Security Agreement, dated as of
March 28, 2009 (as the same may from time to time be amended, modified,
supplemented or restated, the “Loan
Agreement”).
B. Bank
has extended credit to Borrower for the purposes permitted in the Loan
Agreement.
C. Bank
and Borrower have agreed to amend the Loan Agreement, to the extent, and in
accordance with the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.
Agreement
Now,
Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.
2. Amendments
to Loan Agreement.
2.1 Section
6.9 (Operating
Accounts). Subsection (a) of Section 6.9 is amended in its
entirety and replaced with the following:
(a) Maintain
its primary and its Subsidiaries’ primary operating and other deposit accounts
and securities accounts with Bank and Bank’s Affiliates, which accounts shall
represent at least 75% of the dollar value of Borrower’s and such Subsidiaries’
accounts at all financial institutions. Borrower shall maintain
at least Two Million Dollars ($2,000,000) at all times on deposit in Borrower’s
unrestricted operating accounts with Bank and Borrower’s sweep account with Bank
(the “Sweep
Account”).
2.2 Exhibit B (Compliance
Certificate). Exhibit B is amended and restated as set forth
in Attachment
“1” hereto.
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3. Limitation
of Amendments.
3.1 The
amendments set forth in Section
2, above, are effective for the purposes set forth herein and shall be
limited precisely as written and shall not be deemed to (a) be a consent to
any amendment, waiver or modification of any other term or condition of any
Transaction Document, or (b) otherwise prejudice any right or remedy which
Bank may now have or may have in the future under or in connection with any
Transaction Document.
3.2 This
Amendment shall be construed in connection with and as part of the Transaction
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Transaction Documents, except as herein amended, are
hereby ratified and confirmed and shall remain in full force and
effect.
4. Waiver of Events of
Default.
4.1 Bank
hereby waives the Events of Default under Section 8.2(a) of the Loan Agreement
arising out of or related to the covenant in Section 6.9(a) of the Loan
Agreement regarding minimum cash to be maintained in the Sweep
Account.
4.2 The
foregoing Events of Default waiver shall not operate as a waiver of any other
Event of Default, now existing or occurring in the future, whether with respect
to the covenant described above or any other provisions of the Loan Agreement or
of any of the other Transaction Documents. The foregoing waiver also
shall not operate as a waiver of any right or remedy of Bank now existing or
arising in the future with respect to any Event of Default not waived pursuant
to this section.
4.3 Borrower
represents and warrants to Bank that to the best of Borrower’s knowledge no
other Events of Default have occurred and are continuing as of the date
hereof.
5. Representations and
Warranties. To induce Bank to enter into this Amendment,
Borrower hereby represents and warrants to Bank as follows:
5.1 Immediately
after giving effect to this Amendment (a) the representations and
warranties contained in the Transaction Documents are true, accurate and
complete in all material respects as of the date hereof (except to the extent
such representations and warranties relate to an earlier date, in which case
they are true and correct as of such date), and (b) no Event of Default has
occurred and is continuing;
5.2 Borrower
has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this
Amendment;
5.3 The
organizational documents of Borrower delivered to Bank as of March 28, 2009,
remain true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
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5.4 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
5.5 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not and will not contravene (a) any law or regulation binding
on or affecting Borrower, (b) any contractual restriction with a Person
binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrower, or (d) the organizational documents of Borrower;
5.6 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
either Borrower, except as already has been obtained or made; and
5.7 This
Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
6. Counterparts. This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Effectiveness. This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto, and (b) Borrower’s payment of
all Bank Expenses relating to this Amendment.
[Signature
page follows.]
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In Witness
Whereof, the parties
hereto have caused this Amendment to be duly executed and delivered as of the
date first written above.
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BANK
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BORROWER
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Silicon
Valley Bank
By: /s/
Mike Meier
Name: Mike
Meier
Title: Relationship
Manager
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Betawave
Corporation
By: /s/
David Lorie
Name: David
Lorie
Title: Secretary
and General
Counsel
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ATTACHMENT
“1”
EXHIBIT
B
COMPLIANCE
CERTIFICATE
TO: SILICON
VALLEY
BANK Date:
FROM: BETAWAVE
CORPORATION
The
undersigned authorized officer of Betawave Corporation (“Borrower”) certifies
that under the terms and conditions of the Loan and Security Agreement between
Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for
the period ending _______________ with all required covenants except as noted
below, (2) there are no Events of Default, (3) all representations and
warranties in the Agreement are true and correct in all material respects on
this date except as noted below; provided, however, that such materiality
qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof; and
provided, further that those representations and warranties expressly referring
to a specific date shall be true, accurate and complete in all material respects
as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed
all required tax returns and reports, and Borrower has timely paid all foreign,
federal, state and local taxes, assessments, deposits and contributions owed by
Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of
the Agreement, and (5) no Liens have been levied or claims made against Borrower
or any of its Subsidiaries relating to unpaid employee payroll or benefits of
which Borrower has not previously provided written notification to
Bank. Attached are the required documents supporting the
certification. The undersigned certifies that these are prepared in
accordance with GAAP consistently applied from one period to the next except as
explained in an accompanying letter or footnotes. The undersigned
acknowledges that no borrowings may be requested at any time or date of
determination that Borrower is not in compliance with any of the terms of the
Agreement, and that compliance is determined not just at the date this
certificate is delivered. Capitalized terms used but not otherwise
defined herein shall have the meanings given them in the Agreement.
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Please
indicate compliance status by circling Yes/No under “Complies”
column.
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Reporting Covenant
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Required
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Complies
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Monthly
financial statements with
Compliance
Certificate, Publisher Guarantees and Publisher Advances
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Monthly
within 20 days
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Yes No
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Annual
financial statement (CPA Audited) + CC
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FYE
within 180 days
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Yes No
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10-Q,
10-K and 8-K
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Within
5 days after filing with SEC
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Yes No
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Transaction
Report
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Monthly
within 30 days
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Yes No
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Annual
financial projections
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Within
30 days prior to fiscal year commencement
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Yes No
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The
following intellectual property was registered after the Effective Date
(if no registrations, state “None”)
____________________________________________________________________________
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Financial Covenant
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Required
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Actual
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Complies
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Maintain:
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At
all Times, Minimum Liquidity Ratio
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1.50:1.00
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_____:1.00
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Yes No
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At
all Times, Minimum Deposit in Sweep Account and Operating
Accounts
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$2,000,000
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$________
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Yes No
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On
a Monthly Basis, Minimum Tangible Net Worth
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$_______
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$_______
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Yes No
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5
The following financial covenant
analyses and information set forth in Schedule 1 attached hereto are true and
accurate as of the date of this Certificate.
The following are the exceptions with
respect to the certification above: (If no exceptions exist, state
“No exceptions to note.”)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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BETAWAVE
CORPORATION
By:
Name:
Title:
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BANK
USE ONLY
Received
by: _____________________
authorized
signer
Date: _________________________
Verified:
________________________
authorized
signer
Date: _________________________
Compliance
Status: Yes No
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