EX-10.7.1 17 d229773dex1071.htm FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT First Amendment to Loan and Security Agreement

Exhibit 10.7.1

FIRST AMENDMENT TO

LOAN AND SECURITY AGREEMENT

THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into this      day of December, 2009, by and between SILICON VALLEY BANK, a California corporation (“Bank”) and AUDIENCE, INC., a California corporation (“Borrower”).

RECITALS

A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of July 31, 2009 (as the same has been amended, modified, supplemented or restated, the “Loan Agreement”).

B. Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.

C. Borrower is currently in violation of the Loan Agreement for failing to comply with the minimum revenue covenant set forth in Section 6.7(a) of the Loan Agreement for the months ended August 31, 2009 and September 30, 2009 (the “Minimum Revenue Covenant Violation”), which if not waived by Bank would constitute an Event of Default.

D. Borrower has requested that Bank waive the Minimum Revenue Covenant Violation. Although Bank is under no obligation to do so, Bank is willing to waive the Minimum Revenue Covenant Violation and amend certain provisions of the Loan Agreement, all 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 in a timely manner.

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:

1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement.

2. Amendments to Loan Agreement.

2.1 Waiver. Bank hereby waives the Minimum Revenue Covenant Violation. Bank’s agreement to waive the Minimum Revenue Covenant Violation shall in no way obligate Bank to make any other modifications to the Loan Agreement or to waive Borrower’s compliance with any other terms of the Loan Documents, and shall not limit or impair Bank’s right to demand strict performance of all other terms and covenants as of any date. The waiver set forth above shall not be deemed or otherwise construed to constitute a waiver of any other provisions of the Loan Agreement in connection with any other transaction.


2.2 Section 6.2 (Financial Statements, Reports, Certificates). Section 6.2(f) of the Loan Agreement is amended by deleting it in its entirety and replacing it with the following:

(f) Provide Bank with, upon request by Bank, a Deferred Revenue report and sell-through report, each in form acceptable to Bank.

2.3 Section 6.7 (Financial Covenants). Section 6.7(a) of the Loan Agreement is amended by deleting it in its entirety and replacing it with the following:

(a) Adjusted Quick Ratio. Commencing November 30, 2009, an Adjusted Quick Ratio of at least 1.5 to 1.0.

2.4 Section 13 (Definitions). The following terms and their respective definitions are hereby added to Section 13.1 of the Loan Agreement as follows:

Adjusted Quick Ratio” is a ratio of Quick Assets to Current Liabilities.

Current Liabilities” are all obligations and liabilities of Borrower to Bank, plus, without duplication, the aggregate amount of Borrower’s Total Liabilities that mature within one (1) year, minus the aggregate amount of Borrower’s Deferred Revenue that under GAAP should be included on that date as current assets on Borrower’s balance sheet.

“Quick Assets” is, on any date, Borrower’s unrestricted cash, plus net billed accounts receivable.

Total Liabilities” is on any day, obligations that should, under GAAP, be classified as liabilities on Borrower’s consolidated balance sheet, including all Indebtedness and current portion of Subordinated Debt permitted by Bank to be paid by Borrower, but excluding all other Subordinated Debt.

2.5 Compliance Certificate. Exhibit B of the Loan Agreement is replaced in its entirety with Exhibit B attached hereto. From and after the date of this Amendment, all references in the Loan Agreement to the Compliance Certificate shall be deemed to refer to Exhibit B attached hereto.

3. Limitation of Amendments.

3.1 The amendments set forth in Section 2, 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.

3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and

 

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agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.

3.3 In addition to those Events of Default specifically enumerated in the Loan Documents, the failure to comply with the terms of any covenant or agreement contained herein shall constitute an Event of Default and shall entitle the Bank to exercise all rights and remedies provided to the Bank under the terms of any of the other Loan Documents as a result of the occurrence of the same.

4. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows:

4.1 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 (b) no Event of Default has occurred and is continuing;

4.2 Borrower has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;

4.3 The organizational documents of Borrower delivered to Bank on the Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;

4.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;

4.5 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of Borrower;

4.6 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower, except as already has been obtained or made; and

4.7 This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,

 

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liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.

5. Counterparts. This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

6. Effectiveness. This Amendment shall be deemed effective upon (a) the due execution and delivery to Bank of this Amendment by each party hereto, and (b) payment of Bank’s legal fees and expenses in connection with the negotiation and preparation of this Amendment.

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.

 

BANK
SILICON VALLEY BANK
By:   /S/ Matthew Wright
Name:   Matthew Wright
Title:   RM
BORROWER
AUDIENCE, INC.
By:   /S/ James L. Lau
Name:   James L. Lau
Title:   CFO

[Signature Page to First Amendment to Loan and Security Agreement]


EXHIBIT B

LOGO

SPECIALTY FINANCE DIVISION

Compliance Certificate

I, an authorized officer of AUDIENCE, INC. (“Borrower”) certify under the Loan and Security Agreement (the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows (all capitalized terms used herein shall have the meaning set forth in the Agreement):

Borrower represents and warrants for each Financed Receivable:

Each Financed Receivable is an Eligible Account.

Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable;

The correct amount is on the Invoice Transmittal and is not disputed;

Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date;

Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens;

There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount;

It reasonably believes no Account Debtor with respect to a Financed Receivable is insolvent or subject to any Insolvency Proceedings;

It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing;

Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral.

No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.


Additionally, Borrower represents and warrants as follows:

Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change.

Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects.

Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. 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. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change.

 

Please indicate compliance status by circling Yes/No under “Complies” column.
     
Reporting Covenant   Required   Complies
     

Monthly financial statements with Compliance Certificate

  Monthly within 30 days   Yes No
     

Annual financial statement (CPA Audited) + CC

  FYE within 180 days   Yes No
     

Annual financial projections

  Within 10 days after Board approval   Yes No
     

A/R & A/P Agings

  Monthly within 30 days   Yes No
     

Deferred Revenue report and sell-through report

  Upon Bank’s request   Yes No


Financial Covenants

   Required      Actual      Complies

Adjusted Quick Ratio, tested monthly

     1.50:1.00         ____:1.00       Yes No

 

Performance Pricing

 
     

Account Advances

             

Net Cash > $2,500,000.00

  

The greater of Prime or 4%

     Yes No   

$2,500,000.00 > Net Cash > $1.00

  

(i) The greater of Prime or 4%, plus (ii) 0.25%

     Yes No   

Net Cash < $1.00

  

(i) The greater of Prime or 4%, plus (ii) 0.25%,

and CHF of 0.415%

     Yes No   
   

Purchase Order Advances

       

At all times

  

The greater of Prime or 4%

     Yes No   

The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate.

All representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.

Sincerely,

AUDIENCE, INC.

  
Signature
  
Title
  
Date


Schedule 1 to Compliance Certificate

Financial Covenants of Borrower

Dated:                     

In the event of a conflict between this Schedule and the Loan Agreement, the terms of the Loan Agreement shall govern.

Adjusted Quick Ratio (Section 6.7(a))

Required: 1.50:1.00

Actual:

 

A.

   Aggregate value of the unrestricted cash of Borrower and its Subsidiaries    $ _____   

B.

   Aggregate value of the net billed accounts receivable of Borrower and its Subsidiaries    $ _____   

C.

   Quick Assets (the sum of lines A and B)    $ _____   

D.

   Aggregate value of Obligations to Bank    $ _____   

E.

   Aggregate value of liabilities that should, under GAAP, be classified as liabilities on Borrower’s consolidated balance sheet, including all Indebtedness, and not otherwise reflected in line D above that matures within one (1) year    $ _____   

F.

   Current Liabilities (the sum of lines D and E)    $ _____   

G.

   Aggregate value of all amounts received or invoiced by Borrower in advance of performance under contracts and not yet recognized as revenue that under GAAP should be included on that date as current assets on Borrower’s balance sheet.    $ _____   

H.

   Line F minus Line G    $ _____   

I.

   Adjusted Quick Ratio (line C divided by line H)      _____   

Is line I equal to or greater than 1.50:1.00?

 

                 No, not in compliance                     Yes, in compliance