EXHIBIT 10.2
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of February 20, 2004, by and
among Health Grades, Inc., (the "Borrower" and sometime referred to as "Health
Grades") and Silicon Valley Bank ("Bank").
1. DESCRIPTION OF EXISTING OBLIGATIONS: Among other Obligations which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, a Loan and Security Agreement, dated May 10, 2002, as may be amended
from time to time (the "Loan Agreement"). The Loan Agreement provides for, among
other things, a Committed Revolving Line in the original principal amount of One
Million Dollars ($1,000,000) and a Term Loan in the original principal amount of
Five Hundred Thousand Dollars ($500,000) subject to the terms set forth in the
Loan Agreement. Defined terms used but not otherwise defined herein shall have
the same meanings as set forth in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Obligations."
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Obligations shall be referred
to as 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.
A. Modification(s) to Loan Agreement.
1. Item (ii) under Section 6.7 entitled "Financial Covenants" is
hereby amended to read as follows:
Tangible Net Worth. A book net worth, less intangibles,
plus non- offsetable Deferred License and Maintenance
Revenue of at least the sum of $2,750,000 plus 25% of new
equity or fiscal quarter Profitability. For calculation
purposes, "Profitability" is defined as pre-tax earnings.
2. Section 6.8 entitled "Registration of Intellectual Property
Rights" is hereby amended to read as follows:
Borrower shall not register any Copyrights or Mask Works with
the United States Copyright Office unless it: (i) has given at
least fifteen (15) days' prior notice to Bank of its intent to
register such Copyrights or Mask Works and has provided Bank
with a copy of the application it intends to file with the
United States Copyright Office (excluding exhibits thereto);
(ii) executes a security agreement or such other documents as
Bank may reasonably request in order to maintain the
perfection and priority of Bank's security interest in the
Copyrights proposed to be registered with the United States
Copyright Office; and (iii) records such security documents
with the United States Copyright Office contemporaneously with
filing the Copyright application(s) with the United States
Copyright Office. Borrower shall promptly provide to Bank a
copy of the Copyright application(s) filed with the United
States Copyright Office, together with evidence of the
recording of the security documents necessary for Bank to
maintain the perfection and priority of its security interest
in such Copyrights or Mask Works. Borrower shall provide
written notice to Bank of any application filed by Borrower in
the United States Patent Trademark Office for a patent or to
register a trademark or service mark within 30 days of any
such filing.
Borrower will (i) protect, defend and maintain the
validity and enforceability of the Intellectual Property that
is material to Borrower's business and promptly advise Bank in
writing of material infringements and (ii) not allow any
Intellectual Property material to Borrower's business to be
abandoned, forfeited or dedicated to the public without Bank's
written consent.
3. The following term is hereby amended in Section 13.1 entitled
"Definitions":
"Revolving Maturity Date" is February 19, 2005
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor signing
below) agrees that, as of the date hereof, it has no defenses against paying any
of the Obligations.
6. PAYMENT OF LOAN FEE. Borrower shall pay Bank a fee in the amount of Three
Thousand Five Hundred Dollars ($3,500) ("Loan Fee") plus all out-of-pocket
expenses.
7. CONTINUING VALIDITY. Borrower (and each guarantor and pledgor signing
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 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 and endorsers of Existing Loan Documents, unless the party is
expressly released by Bank in writing. Unless expressly released herein, no
maker, endorser, or guarantor will be released by virtue of this Loan
Modification Agreement. The terms of this paragraph apply not only to this Loan
Modification Agreement, but also to all subsequent loan modification agreements.
8. CONDITIONS. The effectiveness of this Loan Modification Agreement is
conditioned upon payment of the Loan Fee.
This Loan Modification Agreement is executed as of the date first written
above.
BORROWER: BANK:
HEALTH GRADES, INC. SILICON VALLEY BANK
By: By:
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Name: Name:
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Title: Title:
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(SILICON VALLEY BANK LOGO)
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER: Health Grades, Inc
LOAN OFFICER: Kevin Grossman
DATE: February 20, 2004
Loan Fee $3,500.00
Documentation Fee 250.00
UCC Search Fee 300.00
TOTAL FEE DUE $4,050.00
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Please indicate the method of payment:
( ) A check for the total amount is attached.
( ) Debit DDA # __________________ for the total amount.
( ) Loan proceeds
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Borrower (Date)
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Silicon Valley Bank (Date)
Account Officer's Signature
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
3003 Tasman Drive
Santa Clara, CA 95054
FROM: HEALTH GRADES, INC
The undersigned authorized officers of Health Grades, Inc. ("Borrower")
certify that under the terms and conditions of the Loan and Security Agreement
between Borrower and Bank (the "Agreement"), (i) Borrower is in complete
compliance for the period ending _______________ with all required covenants
except as noted below and (ii) all representations and warranties in the
Agreement are true and correct in all material respects on this date. In
addition, the undersigned authorized officer of Borrower certifies that Borrower
and each Subsidiary has timely filed all required tax returns and paid, or made
adequate provision to pay, all material taxes, except those being contested in
good faith with adequate reserves under GAAP. Attached are the required
documents supporting the certification. The Officer certifies that these are
prepared in accordance with Generally Accepted Accounting Principles (GAAP)
consistently applied from one period to the next except as explained in an
accompanying letter or footnotes. The Officer 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.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
Reporting Covenant Required Complies
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Monthly financial statements + CC Monthly within 30 days Yes No
Annual (Audited) FYE within 90 days Yes No
10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No
A/R & A/P Agings Monthly within 20 days* Yes No
Borrowing Base Certificate Monthly within 20 days* Yes No
*or 30 days if no outstanding Advances exist and prior to an Advance if no
outstanding Advances exist.
Financial Covenant Required Actual Complies
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Maintain on a Monthly Basis:
Minimum Quick Ratio (Adjusted) 1.50:1.00 _____:1.00 Yes No
Minimum Tangible Net Worth $2,750,000* $_________ Yes No
Minimum Liquidity Ratio 2.50:1.00 _____:1.00 Yes No
*Plus 25% of new equity or fiscal quarter profitability.
Have there been updates to Borrower's intellectual property? Yes / No
Borrower only has deposit accounts located at the following institutions:
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Comments Regarding Exceptions: See Attached.
Sincerely, --------------------------------------
BANK USE ONLY
Health Grades, Inc. Received by:
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AUTHORIZED SIGNER
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SIGNATURE Date:
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Verified:
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TITLE AUTHORIZED SIGNER
Date:
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DATE
Compliance Status: Yes No
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