Exhibit 10.1


 


FOURTH LOAN MODIFICATION AGREEMENT


 


This Fourth Loan Modification
Agreement (this “Loan Modification Agreement’) is entered into as of September
30, 2003, by and between SILICON VALLEY BANK,
a California-chartered bank, 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 W Washington Street,
Newton, Massachusetts 02462, doing business under the name “Silicon Valley East”
(“Bank”) and (i) IBASIS, INC., a
Delaware corporation with its chief executive office located at 20 Second
Avenue, Burlington, Massachusetts 01803 and (ii) IBASIS GLOBAL, INC., Delaware corporation with its chief
executive office located at 20 Second Avenue, Burlington, Massachusetts 01803
(jointly and severally, individually and collectively, “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 December 30,
2002, evidenced by, among other documents, a certain Loan and Security
Agreement dated as of December 30, 2002 between Borrower and Bank, as amended
by a certain First Loan Modification Agreement dated as of January 30, 2003, a
certain Second Loan Modification Agreement entered into as of February 27,
2003, and a certain Third Loan Modification Agreement dated as of June, 2003
(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 certain Intellectual
Property Security Agreements each dated December 30, 2002 (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.


 


Modification to Loan
Agreement.


 


A.                                   The Loan Agreement shall be amended by
deleting the following text at the end of Section 1(B)of the Schedule thereto:


 


“plus


 


(iii) up to $5,000,000.00
(the “Permitted Overadvance”) for each of the following seven Business Day
periods (each a “Permitted Overadvance Period”): (a) June 30 through the next
six (6) Business Days of each year, (b) September 30 through the next six (6)
Business Days of each year, (c) December 31 though the next six(6) Business
Days of each year, and (d) March 31 through the next six(6) Business Days of
each year; provided in each instance the Permitted Overadvance must be repaid
in full on the first (1st) Business Day after the expiration of each
Permitted Overadvance Period.”


 


and inserting lieu thereof
the following:


 


“plus


 


(iii) up to $5,000,000.00
(the “Permitted Overadvance”) for the period commencing September 30, 2003
through October 9, 2003; provided the Permitted Overadvance must be repaid in
full on October 10, 2003.” 


 


B.                                     The Loan Agreement shall be amended by
deleting Section 5(a) of the Schedule thereto and inserting in lieu thereof the
following:


 

















 


“a. Minimum Tangible Net Worth:


 


Borrower shall maintain a Tangible
Net Worth of not less than:


 


(A)                              from the date of this Agreement through March
31, 2003 - $33,800,000.00


(B)                                from April 1, 2003 through May 31, 2003 -
$27,100,000.00


(C)                                from June 1, 2003 through June 30, 2003 -
$22,750,000.00


(D)                               from July 1, 2003 through July 31, 2003 -
$22,900,000.00


(E)                                 from August 1, 2003 through August 31, 2003 -
$18,000,000.00


(F)                                 from September 1, 2003 through September 30,
2003 - $16,750,000.00


(G)                                from October 1, 2003 through December 31, 2003
- $20,100,000.00


(H)                               from January 1, 2004 through August 31, 2004 -
$19,800,000.00


(I)                                    from September 1, 2004 through November 30,
2004 - $22,300,000.00


(J)                                   from December 1, 2004 and thereafter -
$26,300,000.00”


 


C.                                     The Loan Agreement shall be amended by
deleting Section 5(c) of the Schedule thereto in


its entirety and inserting in
lieu thereof the following:


 


“b. Minimum Cash or Excess Availability:


 


Borrower shall at all times
maintain $5,000,000.00 in (i) cash deposits maintained at Silicon, and/or (ii)
excess “availability” under this Agreement (net of Loans, Letters of Credit or
other indebtedness under this Agreement), as determined by Silicon based upon
the Credit Limit restrictions set forth in Section 1 above).”


 


D.                                    The Loan Agreement shall be amended by
deleting Section 5(c) of the Schedule thereto in its entirety and inserting in
lieu thereof the following:


 


“c. Quick
Ratio.


 


Borrower shall at all times
maintain a ratio of Quick Assets to Current Liabilities of at least:


 


(A)                              from the date of this Agreement through March
31, 2003 - 0.95 to 1.0


(B)                                from April 1, 2003 through May 31, 2003 - 0.90
to 1.0


(C)                                from June 1, 2003 through June 30, 2003 - 0.80
to 1.0


(D)                               from July 1, 2003 through July 31, 2003 - 0.85
to 1.0


(E)                                 from August 1, 2003 through September 30, 2003
- 0.75 to 1.0


(F)                                 from October 1, 2003 through December 31, 2003
- 0.80 to 1.0


(G)                                from January 1, 2004 through March 31, 2004 -
0.85 to 1.0


(H)                               from April 1, 2004 through June 30, 2004 -
0.90 to 1.0


(I)                                    from July 1, 2004 through September 30, 2004 -
0.95 to 1.0


(J)                                   from October 1, 2004 and thereafter - 1.0 to
1.0”


 


4.                                       FEES. Borrower shall reimburse Bank for all reasonable legal fees and
expenses incurred in connection with this amendment to the Existing Loan
Documents.


 


5.                                       WAIVER. The Bank hereby waives the Borrower’s failure to comply with the
“Minimum Tangible Net Worth” covenant set forth in Section 5(a) of the Schedule
to the Loan Agreement for the period ending July 31, 2003. The Bank’s waiver of
Borrower’s compliance with the foregoing covenant shall apply only to the
foregoing specified period.


 


6.                                       CONSISTENT CHANGES. The Existing Loan Documents are hereby
amended wherever necessary to reflect the changes described above.


 


2

















 


7.                                       RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.


 


8.                                       RATIFICATION OF INTELLECTUAL PROPERTY SECURITY
AGREEMENTS. Borrower hereby
ratifies, confirms, and reaffirms, all and singular, the terms and conditions
of the IP Agreements and acknowledges, confirms and agrees that the IP
Agreements contain an accurate and complete listing of all Intellectual
Property.


 


9.                                       RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies, confirms, and
reaffirms, all and singular, the terms and disclosures contained in certain
Perfection Certificates delivered to the Bank on or about December 30, 2002,
and acknowledges, confirms and agrees the disclosures and information provided
therein has not changes, as of the date hereof.


 


10.                                 NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that
Borrower has no offsets, defenses, claims, or counterclaims against the Bank
with respect to the Obligations, or otherwise, and that if Borrower now has, or
ever did have, any offsets, defenses, claims, or counterclaims against the
Bank, whether known or unknown, at law or in equity, all of them are hereby
expressly WAIVED and Borrower hereby RELEASES the Bank from any liability
thereunder.


 


11.                                 CONTINUING VALIDITY. Borrower understands and agrees that in
modifying the existing Obligations, Bank is relying upon Borrower’s
representations, warranties, and agreements, as set forth in the Existing Loan
Documents. Except as expressly modified pursuant to this Loan Modification
Agreement, the terms of the Existing Loan Documents remain unchanged and in
full force and effect. Bank’s agreement to modifications to the existing
Obligations pursuant to this Loan Modification Agreement in no way shall
obligate Bank to make any future modifications to the Obligations. Nothing in
this Loan Modification Agreement shall constitute a satisfaction of the
Obligations. It is the intention of Bank and Borrower to retain as liable
parties all makers of Existing Loan Documents, unless the party is expressly
released by Bank in writing. No maker will be released by virtue of this Loan
Modification Agreement.


 


12.                                 COUNTERSIGNATURE. This Loan Modification Agreement shall
become effective only when it shall have


been executed by Borrower and
Bank.


 


[The remainder of this page is intentionally left blank]


 


3

















 


This Loan Modification Agreement
is executed as a sealed instrument under the laws of the Commonwealth of
Massachusetts.


 


	
  BORROWER:

  
	
   

  
	
  IBASIS,
  INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/  Ofer Gneezy

  	
   

  
	
  Name:  Ofer Gneezy

  
	
  Title:    Chief Executive Officer

  
	
   

  
	
  IBASIS
  GLOBAL, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/  Richard Tennant

  	
   

  
	
  Name:  Richard Tennant

  
	
  Title:    Chief Financial Officer

  
	
   

  
	
  BANK:

  
	
   

  
	
  SILICON
  VALLEY BANK, d/b/a

  
	
  SILICON
  VALLEY EAST

  
	
   

  
	
   

  
	
  By:

  	
  /s/  Nancy E. Funkhouser

  	
   

  
	
  Name:  Nancy E. Funkhouser

  
	
  Title:

  	
    Vice President

  	
   

  
					



 


The undersigned ratifies,
confirms and reaffirms, all and singular, the terms and conditions of a certain
Unconditional Guaranty dated December 30, 2002 (the “Guaranty”) and a certain
Security Agreement dated December 30, 2002 (the “Security Agreement”) and
acknowledges, confirms and agrees that the Guaranty and the Security Agreement
shall remain in full force and effect and shall in no way be limited by the
execution of this Loan Modification Agreement, or any other documents,
instruments and/or agreements executed and/or delivered in connection herewith.


 


 


	
   

  	
  IBASIS
  SECURITIES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Ofer Gneezy

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Ofer Gneezy

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
      Chief Executive Officer

  
						



 


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