Exhibit 10.01
DEFAULT WAIVER AND FIRST
AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
This DEFAULT WAIVER AND FIRST
AMENDMENT to Loan and Security Agreement (this
“Amendment”) is entered into this 22nd day of February,
2006, by and between Silicon Valley Bank (“Bank”) and
Versant Corporation, a California corporation
(“Borrower”) whose address is 6539 Dumbarton Circle,
Fremont, CA 94555.
RECITALS
A. Bank and Borrower have entered into that certain
Loan and Security Agreement dated as of June 16, 2005, by and
between Bank and Borrower (as the same may from time to time be
amended, modified, supplemented or restated, the “Loan
Agreement”). Bank has extended credit to Borrower for the
purposes permitted in the Loan Agreement.
B. Borrower is currently in default of the Loan
Agreement for failing to (1) comply with the covenants set
forth in Section 6.2(a)(i) for the months ended November 30, 2005,
December 31, 2005 and January 31, 2006 and (2) Section 7.1 of
the Loan Agreement, (each of the defaults under (1) and (2),
collectively, the “Existing Defaults”).
C. Borrower has requested that Bank waive its
rights and remedies against Borrower, limited specifically to the
Existing Defaults. Although Bank is under no obligation to do so,
Bank is willing to not exercise its rights and remedies against
Borrower related to the specific Existing Defaults on the terms and
conditions set forth in this Amendment, so long as Borrower
complies with the terms, covenants and conditions set forth in this
Amendment.
D. Borrower has further requested that Bank amend
the Loan Agreement to amend the monthly financial statement
reporting requirement. Bank has agreed to so amend certain
provisions of the Loan Agreement, but only to the extent, in
accordance with the terms, subject to the conditions and in
reliance upon the representations and warranties set forth
below.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing
recitals and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
Definitions.
Capitalized terms used but not
defined in this Amendment shall have the meanings given to them in
the Loan Agreement.
Waiver of Covenant
Default.
Bank hereby waives Borrower’s
existing default under the Loan Agreement by virtue of
Borrower’s failure to comply with Section 6.2(a)(i) for the
months ended November 30, 2005, December 31, 2005 and January 31,
2006.
Bank also waives Borrower’s
existing default under the Loan Agreement by virtue of
Borrower’s failure to comply with Section 7.1 by
Borrower’s failure to obtain Bank’s prior consent with
respect to the sale of certain assets of the WebSphere Business as
defined in that certain Asset Purchase Agreement between Versant
Corporation and Sima Solutions dated February 1, 2006. Bank’s
waiver of Borrower’s compliance of these covenants shall
apply only to the foregoing period. Accordingly, hereinafter,
Borrower shall be in compliance with these covenants.
Bank’s agreement to
waive the above-described defaults (1) in no way shall be deemed an
agreement by the Bank to waive Borrower’s compliance with the
above-described covenants as of all other dates and (2) shall not
limit or impair the Bank’s right to demand strict performance
of these covenants as of all other dates and (3) shall not limit or
impair the Bank’s right to demand strict performance of all
other covenants as of any date.
Amendments to Loan
Agreement.
Section 6.2
( Financial Statements, Reports,
Certificates ).
Section 6.2(a)(i) is hereby amended
to read as follows:
(i) at such times as
outstanding Obligations exist, as soon as available, but no later
than thirty (30) days after the last day of each month, a company
prepared consolidated balance sheet and income statement covering
Borrower’s consolidated operations during the period
certified by a Responsible Officer and in a form acceptable to
Bank.
Limitation of
Amendments.
The amendment set forth in
Section 3 , above, are effective for the purposes set forth
herein and shall be limited precisely as written and shall not be
deemed to (a) be a consent to any amendment, waiver or modification
of any other term or condition of any Loan Document, or (b)
otherwise prejudice any right or remedy which Bank may now have or
may have in the future under or in connection with any Loan
Document.
This Amendment shall be construed in
connection with and as part of the Loan Documents and all terms,
conditions, representations, warranties, covenants and agreements
set forth in the Loan Documents, except as herein amended, are
hereby ratified and confirmed and shall remain in full force and
effect.
Representations and
Warranties. To induce
Bank to enter into this Amendment, Borrower hereby represents and
warrants to Bank as follows:
Immediately after giving effect to
this Amendment (a) the representations and warranties contained in
the Loan Documents are true, accurate and complete in all material
respects as of the date hereof (except to the extent such
representations and
warranties relate to an earlier
date, in which case they are true and correct as of such date),
and
