EXHIBIT 10.2
WAIVER AND FOURTH LOAN MODIFICATION
AGREEMENT
This
Waiver and Fourth Loan Modification Agreement (this “ Loan
Modification Agreement ”) is entered into as of the
Fourth 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, as further amended by a certain
Second Loan Modification Agreement, dated as of February 13, 2008
but effective as of December 27, 2007, and as further amended by a
certain Waiver and Third Loan Modification Agreement, dated as of
November 14, 2008, 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
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A.
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Modifications
to Loan Agreement .
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1
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The
Loan Agreement shall be amended by deleting the following appearing
as Section 6.9(a) thereof:
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“
(a) Minimum Liquidity . As
of the Third Loan Modification Effective Date, and at all times
thereafter, Borrower shall maintain liquidity in an amount equal to
or greater than Two Million Dollars ($2,000,000), calculated as the
sum of (i) unrestricted and unencumbered cash in accounts with the
Bank or a Bank Subsidiary plus (ii) the aggregate
Availability Amount minus (iii) any outstanding Overadvance.
Nothing in the foregoing sentence shall be construed to imply that
Borrower is permitted to maintain an Overadvance at any
time.
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and inserting in lieu thereof the
following:
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(a) Minimum Cash Balance .
As of the Fourth Loan Modification Effective Date, and at all times
thereafter, Borrower shall maintain not less than One Million Five
Hundred Thousand Dollars ($1,500,000.00) in unrestricted and
unencumbered cash in accounts with the Bank or a Bank
subsidiary.
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2
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The Loan Agreement shall be
amended by deleting the following appearing as Section 6.9(b)
thereof:
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(b) Minimum Cumulative Net Loss/Net
Income . Borrower’s trailing-three-month Net Income
(loss), tested on a monthly basis as of the last day of each month,
shall not be less than (not be a greater net loss than) the amounts
indicated below for each period indicated below:
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Trailing-three-month
Period Ended
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Minimum
Net Income (maximum net loss)
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October
31, 2008
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($2,200,000)
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November
30, 2008
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($2,200,000)
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December
31, 2008
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($1,400,000)
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January
31, 2009
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($1,200,000)
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February
28, 2009
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($900,000)
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March
31, 2009, and each monthly period
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$500,000”
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thereafter
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and inserting in lieu thereof the
following:
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“
(b) Minimum Cumulative Net Loss/Net
Income . Borrower’s trailing-three-month Net Income
(loss), tested on a monthly basis as of the last day of each month,
shall not be less than (not be a greater net loss than) the amounts
indicated below for each period indicated below:
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Trailing-three-month
Period Ended
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Minimum
Net Income (maximum net loss)
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October
31, 2008
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($2,200,000)
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November
30, 2008
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($2,200,000)
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December
31, 2008
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($1,400,000)
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March
31, 2009, and each monthly period
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$500,000”
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thereafter
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3
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The Loan Agreement shall be
amended by deleting the following definitions from Section 13.1
thereof:
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