Exhibit
10.24


 


LOAN MODIFICATION AGREEMENT


 


This Loan Modification
Agreement is entered into as of December 28, 2004, by and between SILICON
VALLEY BANK, a California chartered bank (“Bank”), with its principal place of
business at 3003 Tasman Drive, Santa Clara, California 95054 and with a loan
production office at 4410 Arapahoe Avenue, Suite 200, Boulder, CO 80303, and
eCollege.com (“eCollege”), whose address is 4900 South Monaco Street, Denver,
Colorado 80237, and DataMark, Inc. (“DataMark”), whose address is 2305
President’s Drive, Salt Lake City, UT 84120 (hereinafter eCollege and DataMark
shall be referred to collectively as the “Borrowers” and individually as a “Borrower”).


 


1.             DESCRIPTION OF EXISTING INDEBTEDNESS:  Among other indebtedness which may be owing
by Borrowers to Bank, Borrowers are or may be indebted to Bank pursuant to,
among other documents, a Loan and Security Agreement, dated as of October 30,
2003, as it may be amended from time to time (the “Loan Agreement”).  The Loan Agreement provided for, among other
things, a Committed Revolving Line in the original principal amount of up to
Ten Million Dollars ($10,000,000) and a Term Loan of up to Three Million
Dollars ($3,000,000).  Defined terms used
but not otherwise defined herein shall have the same meanings as set forth in
the Loan Agreement.


 


Hereinafter, all
indebtedness owing by Borrowers to Bank shall be referred to as the “Indebtedness.”


 


2.             DESCRIPTION OF COLLATERAL. Repayment of the
Indebtedness is secured by the Collateral, as described in the Loan Agreement
and in the Intellectual Property Security Agreements.


 


Hereinafter, the
above-described security documents, together with all other documents securing
repayment of the Indebtedness shall be referred to as the “Security Documents”.  Hereinafter, the Security Documents, together
with all other documents evidencing or securing the Indebtedness shall be
referred to as the “Existing Loan Documents”.


 


3.             DESCRIPTION OF CHANGE
IN TERMS.


 


A.            Modification(s) to Loan
Agreement.


 


1.             Section
6.2 entitled “Financial Statements, Reports, Certificates” is amended by
changing subsection (a)(i) thereof to read as follows:


 


(a) Borrowers will deliver to Bank: (i) as soon as
available, but no later than 30 days (but through the period ending 9/30/05, no
later than 45 days) after the last day of each month, company prepared
consolidated and consolidating balance sheets and income statements covering
the operations of eCollege and its Subsidiaries during the period certified by
a Responsible Officer of eCollege and in a form acceptable to Bank;


 


2.             Section
6.2 entitled “Financial Statements, Reports, Certificates” is amended by
changing subsection (c) thereof to read as follows:


 


(c) Within 30 days (but through the period ending
9/30/05, within 45 days) after the last day of each month, Borrowers will
deliver to Bank with the monthly financial statements a Compliance Certificate
signed by a Responsible Officer of eCollege in the form of Exhibit D.


 


3.             Section 6.7 entitled “Financial Covenants” is amended by
changing subsection (i) thereof entitled “Quick Ratio (Adjusted)” to read as
follows:


 


(i)            Quick
Ratio (Adjusted).  A ratio of
Quick Assets to Current Liabilities minus Deferred Revenue and any Quarter-End
Advance of at least 1.00 to 1.00 for the periods ending 12/31/04 through
3/31/05, and of at least 1.50 to 1.00 at 4/30/05 and thereafter.


 





















 


4.             Exhibit D attached hereto shall be substituted for that
attached to the Loan Agreement.


 


B.                                     Consent
to prepayment of Subordinated Debt.


 


Bank
hereby consents to Borrowers’ request to make a prepayment on the Seller Notes
in an aggregate principal amount of $10,000,000.00 plus accrued and unpaid
interest thereon, which prepayment might otherwise have been limited by the
terms of Section 7.8 of the Loan Agreement.


 


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


 


5.             PAYMENT OF EXPENSES.  Borrowers shall pay Bank all of Bank’s
out-of-pocket expenses in connection with this Loan Modification Agreement.


 


6.             NO DEFENSES.  Borrowers (and each guarantor and pledgor
signing below) agrees that, as of the date hereof, they have no defenses
against the obligations to pay any amounts under the Indebtedness.


 


7.             CONTINUING VALIDITY.  Borrowers (and each guarantor and pledgor
signing below) understand and agree that in modifying the existing
Indebtedness, Bank is relying upon Borrowers’ 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 Indebtedness pursuant
to this Loan Modification Agreement in no way shall obligate Bank to make any
future modifications to the Indebtedness. 
Nothing in this Loan Modification Agreement shall constitute a
satisfaction of the Indebtedness.  It is
the intention of Bank and Borrowers to retain as liable parties all makers and
endorsers of Existing Loan Documents, unless the party is expressly released by
Bank in writing.  Unless expressly
released herein, no maker, endorser, or guarantor will be released by virtue of
this Loan Modification Agreement.  The
terms of this paragraph apply not only to this Loan Modification Agreement, but
also to all subsequent loan modification agreements.


 


8.             CONDITIONS. 
The effectiveness of this Loan Modification Agreement is conditioned
upon receipt by Bank of a fully executed counterpart hereof.


 


This
Loan Modification Agreement is executed as of the date first written above.


 


	
  BORROWERS:

  	
  BANK:

  
	
   

  	
   

  
	
  eCollege.com.

  	
  SILICON VALLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Reid E.
  Simpson

  	
   

  	
  By:

  	
  /s/ Frank
  Amoroso

  	
   

  
	
  Name: Reid E.
  Simpson

  	
  Name: Frank Amoroso

  
	
  Title: Chief
  Financial Officer

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DataMark,
  Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Douglas H.
  Kelsall

  	
   

  	
   

  
	
  Name: Douglas H.
  Kelsall

  
	
  Title: Assistant
  Treasurer