Exhibit 10.18
FIRST LOAN MODIFICATION AGREEMENT
This First Loan Modification Agreement (this "Loan Modification
Agreement") is entered into as of October 22, 2003, by and between SILICON
VALLEY BANK, a California-chartered bank, with its principal place of business
at 3003 Tasman Drive, Santa Clara, California 95054 and with a loan production
office located at One Newton Executive Park, Suite 200, 2221 Washington Street,
Newton, Massachusetts 02462, doing business under the name "Silicon Valley East"
("Bank") and INTERNET COMMERCE CORPORATION, a Delaware corporation with its
principal place of business at 805 Third Avenue, 9th Floor, New York, New York
10022 ("Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other
indebtedness and obligations which may be owing by Borrower to Bank, Borrower is
indebted to Bank pursuant to a loan arrangement dated as of May 30, 2003,
evidenced by, among other documents, a certain Accounts Receivable Financing
Agreement dated May 30, 2003 between Borrower and Bank (as amended from time to
time, the "Loan Agreement"). Capitalized terms used but not otherwise defined
herein shall have the same meaning as in the Loan Agreement.
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by
the Collateral as described in the Loan Agreement and a certain Intellectual
Property Security Ag (together with any other collateral security granted to
Bank, the "Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
Modification to Loan Agreement.
The Loan Agreement shall be amended by deleting the
following definition appearing in Section 1 thereof:
" "Facility Period" is the period beginning on this date
and continuing until one year from the date of this
Agreement, unless the period is terminated sooner
pursuant to Section 4.3."
and inserting in lieu thereof the following:
" "Facility Period" is the period beginning on this date
and continuing until August 31, 2004, unless the period
is terminated sooner by Bank with notice to Borrower or
by Borrower pursuant to Section 4.3."
4. FEES. Borrower shall pay to Bank a modification fee equal to Three
Thousand Dollars ($3,000.00), which fee shall be due on the date hereof and
shall be deemed fully earned as of the date hereof. Borrower shall also
reimburse Bank for all reasonable legal fees and expenses incurred in connection
with this amendment to the Existing Loan Documents up to a maximum aggregate
amount of $1,500.
5. RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT. Borrower
hereby ratifies, confirms and reaffirms, all and singular, the terms and
conditions of a certain Negative Pledge/Intellectual Property Security Agreement
dated as of May 30, 2003 between Borrower and Bank, and acknowledges, confirms
and agrees that said Intellectual Property Security Agreement contains an
accurate and complete listing of all Intellectual Property Collateral as defined
in said Intellectual Property Security Agreement.
6. RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies,
confirms and reaffirms, all and singular, the terms and disclosures contained in
a certain Perfection Certificate dated as of May 30, 2003 between Borrower and
Bank, and acknowledges, confirms and agrees the disclosures and information
above Borrower provided to Bank in the Perfection Certificate has not changed,
as of the date hereof.
7. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
8. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.
9. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that
Borrower has no offsets, defenses, claims, or counterclaims against Bank with
respect to the Obligations, or otherwise, and that if Borrower now has, or ever
did have, any offsets, defenses, claims, or counterclaims against Bank, whether
known or unknown, at law or in equity, all of them are hereby expressly WAIVED
and Borrower hereby RELEASES Bank from any liability thereunder.
10. CONTINUING VALIDITY. Borrower understands and agrees that in modifying
the existing Obligations, 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 Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
11. COUNTERSIGNATURE. This Loan Modification Agreement shall become
effective only when it shall have been executed by Borrower and Bank.
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This Loan Modification Agreement is executed as a sealed instrument under
the laws of the Commonwealth of Massachusetts as of the date first written
above.
BORROWER: BANK:
INTERNET COMMERCE CORPORATION SILICON VALLEY BANK
By:______________________________________ By:_______________________________
Name:____________________________________ Name:_____________________________
Title:___________________________________ Title:____________________________
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