WAIVER
AND THIRD LOAN MODIFICATION AGREEMENT
This
Waiver and Third Loan Modification Agreement (this “ Loan
Modification Agreement ”) is entered into as of the Third
Loan Modification Effective Date, by and between SILICON VALLEY
BANK , a California corporation, 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
(“ Bank ”) and VOXWARE, INC. , a Delaware
corporation with its chief executive office located at 300 American
Metro Blvd, Suite 155, Hamilton, NJ 08619 (“ 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 January 3, 2007, but effective as of
December 29, 2006, evidenced by, among other documents, a certain
Amended and Restated Loan and Security Agreement dated as of
January 3, 2007, but effective as of December 29, 2006, by and
between Borrower and Bank, as amended by a certain First Loan
Modification Agreement dated as of February 2, 2007, and as further
amended by a certain Second Loan Modification Agreement, dated as
of February 13, 2008 but effective as of December 27, 2007, by and
between Borrower and Bank (as amended, 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 the Intellectual Property
Collateral as described in a certain Intellectual Property Security
Agreement dated as of December 29, 2003 (as amended, the “
IP Security Agreement ”) (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 .
A.
Modifications
to Loan Agreement .
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1
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The
Loan Agreement shall be amended by deleting the following provision
appearing as Section 2.2 thereof:
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“
2.2 Overadvances . If at any time or for any reason the
total of all outstanding Advances and all other monetary
Obligations exceeds the Availability Amount (an “
Overadvance ”), Borrower shall immediately pay the
amount of the excess to Bank, without notice or demand. Without
limiting Borrower’s obligation to repay to Bank the amount of
any Overadvance, Borrower agrees to pay Bank interest on the
outstanding amount of any Overadvance, on demand, at the Default
Rate.”
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and
inserting in lieu thereof the following:
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“
2.2 Overadvances . If at any time or for any reason the
total of (a) all outstanding Advances plus (b) the Term Loan
Reserve plus (c) the amount of all outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit) plus an amount
equal to the Letter of Credit Reserves, plus (d) the FX Reserve
plus (e) any other monetary Obligations exceeds the Availability
Amount (such excess amount being an “ Overadvance
”), Borrower shall immediately pay the amount of the excess
to Bank, without notice or demand. Without limiting
Borrower’s obligation to repay to Bank the amount of any
Overadvance, Borrower agrees to pay Bank interest on the
outstanding amount of any Overadvance, on demand, at the Default
Rate.”
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2
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The
Loan Agreement shall be amended by deleting the following provision
appearing as Section 2.3(a) thereof:
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“
(a)
Interest Rate .
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(i)
Advances . Subject to Section 2.3(b), the principal amount
outstanding under the Revolving Line shall accrue interest at a
floating per annum rate equal to the one and three-quarters of one
percentage points (1.75%) above the Prime Rate (which shall be
reduced to one-half of one percentage point (.50%) above the Prime
Rate, beginning on the first Payment Date following the occurrence
of the Profitability Event), which interest shall be payable
monthly in accordance with Section 2.3(f) below. Commencing on the
2008 Closing Date and subject to Section 2.3(b), the principal
amount outstanding under the Revolving Line shall accrue interest
at a floating per annum rate equal to the one-half of one
percentage point (0.50%) above the Prime Rate, which interest shall
be payable monthly in accordance with Section 2.3(f)
below.
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(ii)
Term Loan . Subject to Section 2.3(b), the principal amount
outstanding under the Term Loan shall accrue interest at a floating
per annum rate equal to two and one-quarter of one percentage
points (2.25%) above the Prime Rate, which interest shall be
payable monthly in accordance with Section 2.3(f) below. Commencing
on the 2008 Closing Date and subject to Section 2.3(b), the
principal amount outstanding under the Term Loan shall accrue
interest at a floating per annum rate equal one and three-quarters
of one percentage points (1.75%) above the Prime Rate, which
interest shall be payable monthly in accordance with Section 2.3(f)
below.
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(iii)
Equipment Line . Subject to Section 2.3(b), at
Borrower’s election, the principal amount outstanding for
each Equipment Advance shall accrue interest at either: (i) the
greater of (x) a floating per annum rate equal to one percentage
point (1.0%) above the Prime Rate, or (y) six and three-quarters of
one percent (6.75%), or (ii) a fixed per annum rate equal to eight
and one-quarter of one percent (8.25%), determined by Bank as of
the applicable Funding Date, which interest shall be payable
monthly in accordance with Section 2.3(f).”
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and
inserting in lieu thereof the following:
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“
(a)
Interest Rate .
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(i)
Advances . Subject to Section 2.3(b), the principal amount
outstanding under the Revolving Line shall accrue interest at a
floating per annum rate equal to one and three-quarters of one
percentage points (1.75%) above the Prime Rate (which shall be
reduced to one-half of one percentage point (.50%) above the Prime
Rate, beginning on the first Payment Date following the occurrence
of the Profitability Event), which interest shall be payable
monthly in accordance with Section 2.3(f) below. Commencing on the
2008 Closing Date and subject to Section 2.3(b), the principal
amount outstanding under the Revolving Line shall accrue interest
at a floating per annum rate equal to one-half of one percentage
point (0.50%) above the Prime Rate, which interest shall be payable
monthly in accordance with Section 2.3(f) below. Commencing on the
Third Loan Modification Effective Date and subject to Section
2.3(b), the principal amount outstanding under the Revolving Line
shall accrue interest at a floating per annum rate equal to three
percentage points (3.00%) above the Prime Rate, which interest
shall be payable monthly in accordance with Section 2.3(f)
below.
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(ii)
Term Loan . Subject to Section 2.3(b), the principal amount
outstanding under the Term Loan shall accrue interest at a floating
per annum rate equal to two and one-quarter of one percentage
points (2.25%) above the Prime Rate, which interest shall be
payable monthly in accordance with Section 2.3(f) below. Commencing
on the 2008 Closing Date and subject to Section 2.3(b), the
principal amount outstanding under the Term Loan shall accrue
interest at a floating per annum rate equal one and three-quarters
of one percentage points (1.75%) above the Prime Rate, which
interest shall be payable monthly in accordance with Section 2.3(f)
below. Commencing on the Third Loan Modification Effective Date and
subject to Section 2.3(b), the principal amount outstanding under
the Term Loan shall accrue interest at a floating per annum rate
equal to three percentage points (3.00%) above the Prime Rate,
which interest shall be payable monthly in accordance with Section
2.3(f) below.
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(iii)
Equipment Line . Subject to Section 2.3(b), at
Borrower’s election, the principal amount outstanding for
each Equipment Advance shall accrue interest at either: (i) the
greater of (x) a floating per annum rate equal to one percentage
point (1.0%) above the Prime Rate, or (y) six and three-quarters of
one percent (6.75%), or (ii) a fixed per annum rate equal to eight
and one-quarter of one percent (8.25%), determined by Bank as of
the applicable Funding Date, which interest shall be payable
monthly in accordance with Section 2.3(f). Commencing on the Third
Loan Modification Effective Date and subject to Section 2.3(b), the
principal amount outstanding for each Equipment Advance shall
accrue interest at a floating per annum rate equal to three
percentage points (3.00%) above the Prime Rate, which interest
shall be payable monthly in accordance with Section 2.3(f)
below.”
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3
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The
Loan Agreement shall be amended by deleting the following appearing
at the end of Section 6.2(a) thereof:
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“Notwithstanding
the foregoing, during any period in
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