Exhibit 10-1
FLEET BANK - NH
THIRD AMENDMENT TO COMMERCIAL LOAN AGREEMENT
AND LOAN DOCUMENTS
This Amendment (the "Amendment") is made as of this 7th day of October,
1998, by and among WHITE PINE SOFTWARE, INC., a Delaware corporation with its
principal place of business at 542 Amherst Street, Nashua, New Hampshire 03063
(the "Borrower") and FLEET BANK - NH, a bank organized under the laws of the
State of New Hampshire with a principal address of NH NA E02A, 1155 Elm Street,
Manchester, New Hampshire 03101 (the "Bank").
WITNESSETH:
WHEREAS, pursuant to a certain Commercial Loan Agreement dated December
30, 1994 between the Bank and the Borrower, as amended by a First Amendment to
Commercial Loan Agreement dated December 20, 1996 and a Second Amendment to
Commercial Loan Agreement dated June 30, 1998 (the "Loan Agreement"), the Bank
has extended to the Borrower a certain Revolving Line of Credit Loan in the
current principal amount of up to Three Million Dollars ($3,000,000.00) (the
"Revolving Line of Credit Loan") and have executed certain documentation in
connection therewith (the Loan Agreement and all of the foregoing are referred
to collectively as the "Loan Documents"); and
WHEREAS, the parties wish to amend the Loan Agreement and the Loan
Documents in order to decrease the Revolving Line of Credit Loan and in
connection therewith to make certain other modifications to the terms and
conditions of the Loan Agreement and the Loan Documents, all as hereinafter set
forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Bank and the Borrower agree as
follows:
1. Amendment to Loan Agreement. The Loan Agreement shall be and hereby
is amended as follows:
a. The maximum available dollar amount under the Revolving Line of
Credit Loan shall be and is hereby decreased to One Million Dollars
($1,000,000.00), subject to the limitation set forth in clause (2) of
Section I. A. of the loan agreement.
b. The Review Date as set forth in Section I. C of the Loan
Agreement shall be and hereby is amended to mean June 30, 1999 and each
anniversary of such date to which the Bank in its sole discretion
elects to renew and extend the Revolving Line of Credit Loan.
c. Section IV of Schedule B of the Loan Agreement shall be and
hereby is amended by deleting the same and inserting in place these of
the following:
1. Borrower shall have a Tangible Net Worth (as hereinafter
defined) equal to at least Ten Million Dollars ($10,000,000.00) as
at September 30, 1998 and as at each
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fiscal quarter end thereafter. "Tangible Net Worth" means total
shareholders' equity less intangible assets, all as determined in
accordance with generally accepted accounting principles from
Borrower's financial statements delivered to the Bank in
accordance with the covenants of the Borrower in the Loan
Agreement (the "Financial Statements").
2. Borrower shall maintain Cash Equivalents (as hereinafter
defined) of not less than Four Million Dollars ($4,000,000.00) at
all times. For purposes hereof, "Cash Equivalents" shall mean the
aggregate amount of all cash, bank accounts, certificates of
deposit, marketable securities (i.e., equity securities listed on
the New York or - American stock exchanges or quoted on the
National Association of Securities Dealers Automated Quotation
system (NASDAQ), state or municipal bonds, or United States
Treasury securities), and funds invested for management with Fleet
Investment Advisors as at the fiscal quarter ending on the date of
determination, all as determined in accordance with generally
accepted accounting principals from the Financial Statements.
3. Borrower shall report and certify to Bank compliance with
the financial covenants hereinabove within thirty (30) days of the
end of each fiscal quarter on the form attached hereto as Exhibit
B-2 or on such other form or forms as may from time to time be
specified by the Bank.
2. Confirmation of Loan Documents. The Borrower hereby confirms, agrees
and acknowledges that the Revolving Line of Credit Note is and shall be subject
to the terms and conditions of the Loan Agreement and the Loan Documents, as
amended hereby, which shall remain in full force and effect as long as any
Obligations (as defined in the Loan Agreement) are due and owing to the Bank by
the Borrower and which are hereby expressly acknowledged, agreed to, reaffirmed,
and consented to by the Borrower.
3. Reaffirmation of Representations and Warranties. The Borrower hereby
confirms, reasserts, and restates all of its representations and warranties
under the Loan Agreement and the Loan Documents as of the date hereof
4. Reaffirmation of Affirmative Covenants. The Borrower hereby
confirms, reasserts. and restates its affirmative covenants as set forth in the
Loan Agreement and the Loan Documents, as amended hereby, as of the date hereof.
5. Reaffirmation of Negative Covenants. The Borrower hereby confirms,
reasserts, and restates its negative covenants as set forth in the Loan
Agreement and the Loan Documents, as of the date hereof
6. Binding Agreement. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
7. No Further Effect. Except as amended hereby, the terms and
conditions of the Loan Agreement and the Loan Documents as set forth therein and
as heretofore amended, modified, and renewed shall remain in full force and
effect.
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8. Costs and Expenses of Bank. The Borrower agrees to reimburse the
Bank for all reasonable costs, expenses, and fees, including attorneys' fees,
associated with the documentation of this Amendment. Borrower consents to
Bank charging Borrower's Revolving Line of Credit Loan account for any such
costs, expenses and fees.
IN WITNESS WHEREOF, the Borrower and the Bank have executed and
delivered this Agreement as of the date first set forth above.
WHITE PINE SOFTWARE, INC.
Kenneth R. Sheldon By: /s/ Christine J. Cox
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Witness Christine Cox, Vice President
FLEET BANK - NH
Roxanne Persament By: /s/ Kenneth R. Sheldon
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Witness Kenneth Sheldon, Vice President
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REVOLVING LINE OF CREDIT PROMISSORY NOTE
$1,000,000.00 U.S. Nashua, NH October 27, 1998
FOR VALUE RECEIVED, WHITE PINE SOFTWARE, INC., a Delaware corporation
with its principal place of business at 542 Amherst Street, Nashua, New
Hampshire 03063 (the "Borrower"), promises to pay to the order of FLEET BANK -
NH, a bank incorporated under the laws of the State of New Hampshire with a
principal address of Mail Stop NH NA E02A, 1155 Elm Street, Manchester, New
Hampshire 03101 (the "Bank"), at such address, or such other place or places as
the holder hereof may designate in writing from time to time hereafter, the
maximum principal sum of ONE MILLION DOLLARS ($1,000,000.00), or so much thereof
as may be advanced or readvanced by the Bank to the Borrower from time to time
hereafter (such amounts defined as the "Debit Balance" below), together with
interest as provided for herein below, in lawful money of the United States of
America.
The Borrower's "Debit Balance" shall mean the debit balance in an
account on the books of the Bank, maintained in the form of a ledger card,
computer records or otherwise in accordance with the Bank's customary practice
and appropriate accounting procedures wherein there shall be recorded the
principal amount of all advances made by the Bank to the Borrower, all principal
payments made by the Borrower to the Bank hereunder, and all other appropriate
debits and credits. The Bank shall render to the Borrower a statement of account
with respect thereto on a monthly basis. Such statement shall indicate the
Borrower's then current Debit Balance and any interest amounts due and payable
from the Borrower to Bank. The statement shall be considered correct and be
considered accepted by the Borrower, and shall conclusively bind the Borrower,
unless Borrower notifies the Bank to the contrary within thirty (30) days after
the date of mailing.
Under the Revolving Line of Credit Loan evidenced by this Note (the
"Line of Credit"), the Bank agrees to lend to the Borrower, and the Borrower may
borrow, up to the maximum principal sum provided for in this Note in accordance
with and subject to the terms, conditions, and limitations of this Note and the
Commercial Loan Agreement dated December 30, 1994 entered into by and between
the Borrower and the Bank, as amended to date and as the same may be amended
from time to time hereafter (the "Loan Agreement"). The holder of this Note is
entitled to all of the bene.-its and rights of the Bank under the Loan
Agreement. However, neither this reference to the Lo-Ln Agreement nor any
provision thereof shall impair the absolute and unconditional obligation of the
Borrower to pay the principal and interest of this Note as herein provided.
Terms not otherwise defined herein shall have the meanings ascribed to them in
the Loan Agreement.
The Borrower shall make requests for advances under this Note as
provided in the Loan Agreement. The Borrower agrees that the Bank may make all
advances under this Note by direct deposit to any demand account of the Borrower
with the Bank or in such other manner as may be provided in the Loan Agreement,
and that all such advances shall represent binding obligations of the Borrower.
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The Borrower acknowledges that this Note is to evidence the Borrower's
obligation to pay its Debit Balance, plus interest and any other applicable
charges as determined from time to time, and that it shall continue to do so
despite the occurrence of intervals when no Debit Balance exists because the
Borrower has paid the previously existing Debit Balance in full.
Interest shall be calculated and charged daily, based on the actual
days elapsed over a three hundred sixty (360) day banking year, on the unpaid
principal balance outstanding from time to time at an annual variable rate equal
to the Bank's Base Rate, so called, plus one-half of one percent (0.5%) per
annum; provided, however, that at such time and during such period as the
Borrower maintains funds in excess of Fifteen Million Dollars ($15,000,000.00)
under investment management with Fleet Investment Advisors the annual variable
interest rate hereunder shall be equal to the Base Rate. The Base Rate shall be
the Base Rate of the Bank as established and changed by the Bank from time to
time whether or not such rate shall be otherwise published or Borrower is
provided with notice thereof. Each time the Base Rate changes, the interest rate
hereunder shall change contemporaneously with such change in the Base Rate. The
Borrower acknowledges that the Base Rate is used for reference purposes only as
an index and is not necessarily the lowest interest charged by the Bank on
commercial loans.
Pending an Event of Default as provided in the Loan Agreement and
herein below, the Bank shall extend the Line of Credit through and until June
30, 1999, and, if the Line of Credit is renewed and extended by the Bank
pursuant to the Loan Agreement, through and until each anniversary of such date
with respect to which the Line of Credit is renewed and extended (June 30, 1999,
and each anniversary thereof to which the Line of Credit is renewed and
extended, being a "Review Date"). The Borrower shall (i) make payments of
principal from time to time as provided in the Loan Agreement and (ii) make
payments of interest monthly in arrears commencing thirty (30) days from the
date hereof (or on any day within 30 days of the date hereof agreed to by the
Borrower and the Bank to provide for a convenient payment date) and continuing
on the same date of each month thereafter through and until the earlier of the
acceleration of this note upon an Event of Default as provided herein below or
any Review Date with respect to which the Line of Credit is not renewed by the
Bank, whereupon all principal, accrued and unpaid interest, and any other
charges provided for hereunder, shall be due and payable in full. In the event
that the Line of Credit is renewed pursuant to the Loan Agreement as of any
Review Date, this Note shall thereafter continue to evidence amounts advanced
and due under the Line of Credit as renewed.
This Note is being executed and delivered in accordance with the terms
of the Loan Agreement and the documents defined therein as the "Loan Documents".
The payment and performance of the obligations contained in the Loan Documents
are secured by the collateral granted to the Bank therein (the "Collateral") and
the security granted to the Bank in the Loan Documents.
At the option of the Bank, this Note shall become immediately due and
payable in full, without further demand or notice, if any payment of interest or
principal is not made when due
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hereunder or upon the occurrence of any other Event of Default under the terms
hereof, under the Loan Agreement, or under any of the other Loan Documents.
The holder may impose upon the Borrower a delinquency charge of five
percent (5%) of the amount of interest not paid on or before the tenth (10th)
day after such installment is due. The entire principal balance hereof, together
with accrued interest, shall after maturity, whether by demand, acceleration or
otherwise, bear interest at the contract rate of this Note plus an additional
two percent (2%) per annum.
The Borrower agrees that any other property upon or in which the
Borrower has granted or hereafter grants the holder a mortgage or security
interest, securing the payment and performance of any other liability of the
Borrower to the holder, shall also constitute Collateral. As additional
Collateral, the Borrower grants (1) a security interest in, or pledges, assigns
and delivers to the holder, as appropriate, all deposits, credits and other
property now or hereafter due from the holder to the Borrower; and (2) the right
to set off and apply (and a security interest in said right), from time to time
hereafter and without demand or notice of any nature, all, or any portion, of
such deposits, credits and other property, against the indebtedness evidenced by
this Note whether the other Collateral if any, is deemed adequate or not.
The Borrower, and every maker, endorser, or guarantor of this Note,
jointly and severally, agree to pay on demand all reasonable out-of-pocket costs
of collection hereof, including reasonable attorneys' fees, whether or not any
foreclosure or other action is instituted by the holder in its discretion.
No delay or omission on the part of the holder in exercising any right,
privilege or remedy shall impair such right, privilege or remedy or be construed
as a waiver thereof or of any other right, privilege or remedy. No waiver of any
right, privilege or remedy or any amendment to this Note shall be effective
unless made in writing and signed by the holder. Under no circumstances shall an
effective waiver of any right, privilege or remedy on any one occasion
constitute or be construed as a bar to the exercise of or a waiver of such
right, privilege or remedy on any future occasion.
The acceptance by the holder hereof of any payment after any default
hereunder shall not operate to extend the time of payment of any amount then
remaining unpaid hereunder or constitute a waiver of any rights of the holder
hereof under this Note.
All rights and remedies of the holder, whether granted herein or
otherwise, shall be cumulative and may be exercised singularly or concurrently,
and the holder shall have, in addition to all other rights and remedies, the
rights and remedies of a secured party under the Uniform Commercial Code of New
Hampshire. The holder shall have no duty as to the collection or protection of
the Collateral or of any income thereon, or as to the preservation of any rights
pertaining thereto beyond the safe custody thereof. Surrender of this Note, upon
payment or otherwise, shall not affect the right of the holder to retain the
Collateral as security for the payment and performance of any other liability of
the Borrower to the holder.
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The Borrower, and every maker, endorser, or guarantor of this Note,
hereby jointly waive, to the fullest extent permitted by law, presentment,
notice, protest and all other demands and notices and assents (1) to any
extension of the time of payment or any other indulgence, (2) to any
substitution, exchange or release of Collateral, and (3) to the release of any
other person primarily or secondarily liable for the obligations evidenced
hereby.
This Note and the provisions hereof shall be binding upon the Borrower
and the Borrower's heirs, administrators, executors, successors, legal
representatives and assigns and shall inure to the benefit of the holder, the
holder's heirs, administrators, executors, successors, legal representatives and
assigns.
The word "holder" as used herein shall mean the payee or endorsee of
this Note who is in possession of it, or the bearer, if this Note is at the time
payable to the bearer.
This Note may not be amended, changed or modified in any respect except
by a written document which has been executed by each party. This Note
constitutes a New Hampshire contract to be governed by the laws of such state
and to be paid and performed therein.
The provisions of this Note are expressly subject to the condition that
in no event shall the amount paid or agreed to be paid to the holder hereunder
and deemed interest under applicable law exceed the maximum rate of interest on
the unpaid principal balance hereunder allowed by applicable law, if any, (the
"Maximum Allowable Rate"), which shall mean the law in effect on the date
hereof, except that if there is a change in such law which results in a higher
Maximum Allowable Rate being applicable to this Note, then this Note shall be
governed by such amended law from and after its effective date. In the event
that fulfillment of any provisions of this Note results in the interest rate
hereunder being in excess of the Maximum Allowable Rate, the obligation to be
fulfilled shall automatically be reduced to eliminate such excess. If
notwithstanding the foregoing, the holder receives an amount which under
applicable law would cause the interest rate hereunder to exceed the Maximum
Allowable Rate, the portion thereof which would be excessive shall automatically
be applied to and deemed a prepayment of the unpaid principal balance hereunder
and not a payment of interest.
This Note is executed and delivered in replacement of, but not in
novation or discharge of the Revolving Line of Credit Promissory Note of the
undersigned in the principal amount of Three Million Dollars ($3,000,000.00)
dated December 20, 1996 (the "Old Note"). All references to the Old Note in the
Loan Agreement or any other Loan Document shall be deemed to refer to this Note.
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Executed and delivered this 27th day of October, 1998.
BORROWER:
WHITE PINE SOFTWARE, INC.
/s/ Kenneth R. Shelton By /s/ Christine J. Cox, VP Finance
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Witness Signature and Title\Duly Authorized
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