Attached files
Exhibit 10.6.4
THIRD AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (this “Agreement”), dated as of March 9, 2012, is entered into by and between Xtera Communications, Inc., a Delaware corporation (“Xtera” or “Borrower”) and Horizon Technology Finance Corporation, a Delaware corporation (“Lender”).
RECITALS
A. Xtera and Lender are parties to a certain Venture Loan and Security Agreement dated as of May 10, 2011 and amended on June 17, 2011 and December 13, 2011 (as amended, the “Loan Agreement”) pursuant to which Lender, among other things, has (i) provided certain loans to Xtera as evidenced by (1) a certain Secured Promissory Note (Loan A) executed by Xtera in favor of Lender, dated as of May 10, 2011, in the original principal amount of Ten Million Dollars ($10,000,000) (the “Loan A Note”) and (2) a certain Secured Promissory Note (Loan B) executed by Xtera in favor of Lender, dated as of December 27, 2011, in the original principal amount of Two Million Dollars ($2,000,000) (the “Loan B Note” and together with the Loan A Note, the “Notes”), and (ii) been granted a security interest in all assets of Xtera, including Intellectual Property (as defined in the Loan Agreement).
B. Xtera has now requested that Lender amend the Loan Agreement to revise the restrictions with respect to Xtera’s deposit and securities accounts.
C. Lender is willing to grant such request, but only to the extent, and in accordance with the terms, and subject to the conditions, set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Co-Borrowers and Lender hereby agree as follows:
| 1. | Definitions; Interpretation. Unless otherwise defined herein, all capitalized terms used herein and defined in the Loan Agreement shall have the respective meanings given to those terms in the Loan Agreement. Other rules of construction set forth in the Loan Agreement, to the extent not inconsistent with this Agreement, apply to this Agreement and are hereby incorporated by reference. |
| 2. | Amendments to Loan Agreement. |
| 2.1. | Borrower and Lender hereby agree that Section 7.13 is hereby deleted in its entirety and replaced with the following: |
“Maintenance of Accounts. (i) Maintain any deposit account or account holding securities owned by Borrower except accounts with respect to which Lender is able to take such actions as it deems necessary to obtain a perfected security interest in such accounts through one or more Account Control Agreements; or (ii) grant or allow any other Person (other than Lender) to perfect a security interest in, or enter into any agreements with any Persons (other
than Lender) accomplishing perfection via control as to, any of its deposit accounts or accounts holding securities. Notwithstanding the foregoing, Borrower may maintain (i) such other accounts outside of the United States as necessary for the operation of its business provided the aggregate deposits in such foreign accounts does not, at any time, exceed (1) One Million Six Hundred Fifty-Nine Thousand Dollars ($1,659,000) and (2) One Million Two Hundred Twenty-Five Thousand Euro (€1,225,000) and (ii) accounts numbered [ ] and [ ] with Silicon Valley Bank, provided that on or before May 1, 2012, an Account Control Agreement in favor of Lender is in place over such accounts at Silicon Valley Bank.”
| 3. | Waiver. Pursuant to Section 12.4(c) of the Loan Agreement, Lender hereby waives any breach of Section 7.13 of the Loan Agreement that occurred prior to this Amendment. |
| 4. | Conditions to Effectiveness. Lender’s consent and agreement herein is expressly conditioned on Borrower executing and delivering an executed copy of this Agreement. |
| 5. | Effect of Agreement. On and after the date hereof, each reference to the Loan Agreement in the Loan Agreement or in any other document shall mean the Loan Agreement as amended by this Agreement. Except as expressly provided hereunder, the execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power, or remedy of Lender, nor constitute a waiver of any provision of the Loan Agreement. Except to the limited extent expressly provided herein, nothing contained herein shall, or shall be construed to (nor shall the Borrower ever argue to the contrary) (i) modify the Loan Agreement or any other Loan Document (ii) modify, waive, impair, or affect any of the covenants, agreements, terms, and conditions thereof, or (iii) waive the due keeping, observance and/or performance thereof, each of which is hereby ratified and confirmed by the Borrower. Except as expressly amended herein, the Loan Agreement remains in full force and effect. |
| 6. | Headings. Headings in this Agreement are for convenience of reference only and are not part of the substance hereof. |
| 7. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut without reference to conflicts of law rules. |
| 8. | Counterparts. This Agreement may be executed in any number of counterparts, including by electronic or facsimile transmission, each of which when so delivered shall be deemed an original, but all such counterparts taken together shall constitute but one and the same instrument. |
| 9. | Integration. This Agreement and the Loan Documents constitute and contain the entire agreement of Borrower and Lender with respect to their respective subject matters, and supercede any and all prior agreements, correspondence and communications. |
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IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be executed as of the day and year first above written.
| BORROWER:
XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
| LENDER:
HORIZON TECHNOLOGY FINANCE CORPORATION | ||
| By: | /s/ Robert D. Pomeroy, Jr. | |
| Robert D. Pomeroy, Jr. | ||
| Chief Executive Officer | ||
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