Attached files
file | filename |
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10-Q - SEACHANGE INTERNATIONAL INC | v204769_10q.htm |
EX-31.1 - SEACHANGE INTERNATIONAL INC | v204769_ex31-1.htm |
EX-31.2 - SEACHANGE INTERNATIONAL INC | v204769_ex31-2.htm |
EX-32.1 - SEACHANGE INTERNATIONAL INC | v204769_ex32-1.htm |
EX-32.2 - SEACHANGE INTERNATIONAL INC | v204769_ex32-2.htm |
Exhibit
10.1
SEVENTEENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
DATED
OCTOBER 22, 2001
This Seventeenth Amendment to Loan and
Security Agreement (the “Seventeenth Amendment”) is made as of this 29th day of
October, 2010 by and between SeaChange International, Inc., a Delaware
corporation with its principal place of business at 50 Nagog Park, Acton,
Massachusetts 01720 (the “Borrower”) and RBS Citizens, National Association,
successor by merger with Citizens Bank of Massachusetts, a national banking
association with offices at 28 State Street, Boston, Massachusetts (the
“Lender”) in consideration of the mutual covenants contained herein and the
benefits to be derived herefrom. Unless otherwise specified, all
capitalized terms shall have the same meaning herein as set forth in the
Agreement (as defined below).
WITNESSETH:
WHEREAS, on October 22, 2001, the
Borrower and the Lender entered into a loan arrangement (the “Loan Arrangement”)
as evidenced by, amongst other documents and instruments, a certain Loan and
Security Agreement as amended from time to time (as may be further amended from
time to time, the “Agreement”) by and between the Borrower and the Lender
pursuant to which the Lender agreed to provide certain financial accommodations
to or for the benefit of the Borrower; and
WHEREAS, the Borrower has requested
that the Lender amend certain terms and conditions of the Agreement all as set
forth herein, and
WHEREAS,
the Lender has agreed to so amend the Agreement provided the Borrower and the
Lender entered into this Seventeenth Amendment; and
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
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1.
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Section
5(a) of the Agreement is hereby amended by deleting the phrase “the lesser
of (i) the Borrowing Base (as defined below, or
(ii)”.
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2.
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Sections
5(c), (f), 12(e) (i) through and including (iii) of the Agreement are
hereby deleted in their entirety.
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3.
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Section
5(d) of the Agreement is hereby amended by deleting “Fifteen Million
($15,000,000.00) Dollars” and replacing it with “Twenty Million
($20,000,000.00) Dollars”.
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4.
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Section
5(g) of the Agreement is hereby amended by deleting “Two Million
($2,000,000.00) Dollars” from the definition of Letter of Credit Limit and
replacing it with “Five Million ($5,000,000.00) Dollars. The amount
available under the Letter of Credit Limit shall be reduced by the
Business Card Limit. As used herein “Business Card Limit” shall mean
the aggregate maximum credit limit on all business credit cards issued by
the Lender to or on behalf of the
Borrower.
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5.
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Section
5(h)(i) of the Agreement is hereby amended by deleting all of the
references to “Borrowing Base” and replacing it with “Credit
Limit”.
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6.
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Section
5(k) of the Agreement is hereby amended by deleting “one quarter of one
percent (.25%) per annum” and replacing it with “three eighths of one
percent (.375%) per annum”.
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7.
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Section
6 of the Agreement is hereby deleted in its
entirety.
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8.
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Section
13(z) of the Agreement is hereby deleted and replaced with the
following:
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“(z) The
Borrower shall cause all material domestic subsidiaries to guaranty the
Obligations of the Borrower to the Bank in the form of Exhibit Guaranty
annexed hereto. Borrower shall pledge 65% of its interest in all material
foreign subsidiaries in the form of Exhibit Pledge
Agreement annexed hereto. All guaranties and pledges shall be
accompanied by such due diligence as requested by the Lender. As used
herein a “material subsidiary” shall be a direct or indirect subsidiary of the
Borrower that owns fifteen percent (15%) or more of the total assets (exclusive
of goodwill and client contracts) of the Borrower at the most recent quarter end
or contributes at least fifteen percent (15%) of the total sales of the Borrower
for the trailing twelve (12) month period at most recent quarter end. A
foreign subsidiary shall be any direct or indirect subsidiary of the Borrower
that is not incorporated or organized under the laws of the United States of
America, any state thereof or the District of Columbia. The Borrower shall
notify the Bank in writing upon a subsidiary becoming a material subsidiary and
shall include in its quarterly compliance certificate a list of all subsidiaries
with a designation of which subsidiary is a material subsidiary.”
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9.
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The
Agreement is hereby supplemented by adding the following Section as
Section 14 (b):
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“(Fixed Charge
Coverage) permit, for the twelve-month period ending on the last day of
any fiscal quarter, the ratio of cash flow to fixed charges to be less than 1.2
to 1 until January 31, 2011 and 1.5 to 1 thereafter, tested
quarterly.”
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10.
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The
definition of “fixed charges” after Section 14(o) of the Agreement is
hereby deleted and replaced with the
following:
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“fixed
charges” shall mean interest, plus CMLTD, plus operating lease expense, plus all
earnout payments and commencing after January 31, 2011, all deferred purchase
payments from acquisitions.”
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11.
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Section
19(a) of the Agreement is hereby amended by deleting “October 31, 2010 and
replacing it with ‘October 31,
2012”.
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12.
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The
Compliance Certificate annexed to the Agreement as Exhibit 2 is hereby
deleted and replaced by the attached Exhibit
2.
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13.
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The
Borrower hereby agrees that the liabilities, obligations and indemnity of
the Borrower under the Agreement shall be secured by any and all
collateral now or hereafter granted to the Lender by the
Borrower.
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2
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14.
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The
Borrower and each guarantor signing below hereby acknowledge and agree
that the Borrower has no offsets, defenses or counterclaims against the
Lender with respect to the Loan Arrangement or otherwise, and to the
extent that the Borrower or guarantor has any such offsets, defenses or
counterclaims against the Lender, then the Borrower and
each guarantor hereby affirmatively WAIVES and RENOUNCES any such offsets,
defenses or counterclaims.
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15.
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This
Seventeenth Amendment and all other documents executed in connection
herewith incorporate all discussions and negotiations between the Borrower
and the Lender either expressed or implied, concerning the matters
contained herein and in such other instruments, any statute, custom or use
to the contrary notwithstanding. No such discussions or negotiations
shall limit, modify or otherwise effect the provisions
hereof. The modification amendment, or waiver of any provision
of this Seventeenth Amendment, the Agreement or any provision under any
other agreement or document entered into between the Borrower and the
Lender shall not be effective unless executed in writing by the party to
be charged with such modification, amendment or waiver, and if such party
be the Lender, then by a duly authorized officer
thereof.
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16.
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Except
as specifically modified herein, the Agreement shall remain in full force
and effect as originally written, and the Borrower hereby ratifies and
confirms all terms and conditions contained in the
Agreement.
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17.
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This
Seventeenth Amendment shall be construed in accordance with and governed
by the laws of the Commonwealth of Massachusetts and shall take effect as
a sealed instrument.
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IN
WITNESS WHEREOF, the parties hereof have set their hands and seals as of the
date first written above.
SEACHANGE
INTERNATIONAL, INC.
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By: /s/ Kevin Bisson
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Name:
Kevin Bisson
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Title:
Senior V.P. and CFO
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RBS
CITIZENS, NATIONAL ASSOCIATION
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By:
/s/ William M. Clossey
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Name:
William M. Clossey
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Title:
Vice President
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The undersigned guarantor hereby
consents to the foregoing Seventeenth Amendment and acknowledge that its
guaranty remains in full force and effect and that the guarantor remains
obligated thereunder.
SEACHANGE
HOLDINGS INC.
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By: /s/ Kevin Bisson
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Name:
Kevin Bisson
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Title:
Senior V.P. and CFO
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