First Amendment to Amended and Restated Loan and Security Agreement



 EXHIBIT 10.26 
 FIRST AMENDMENT 
 TO 
 AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT 
 THIS FIRST AMENDMENT
to Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into this 29th day of May, 2009, by and among Silicon Valley Bank (“Bank”) and 3PAR Inc., a Delaware corporation (“Borrower”).

 RECITALS 
 A. Bank and Borrower have entered into that certain Amended and Restated Loan and Security Agreement dated as of May 30, 2008, as amended to date and as may be further amended, modified, supplemented or restated from time to
time (as amended, the “Loan Agreement”). 
 B. Bank has extended credit to Borrower for the purposes permitted in the Loan
Agreement. 
 C. Borrower has requested that Bank amend the Loan Agreement pursuant to the terms hereof. 
 D. Bank has agreed to so amend the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance
upon the representations and warranties set forth below. 
 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 Section 6.7(a)(Tangible Net Worth). Section 6.7(a) is hereby amended
in its entirety to read as follows: 
 (a) Tangible Net Worth. A Tangible Net Worth of at least $85,000,000 plus (i) 50% of any
of all new net issuances of equity proceeds received by Borrower since March 31, 2009 plus (ii) 50% of quarterly profits of Borrower and its Subsidiaries since March 31, 2009. 
 2.2 Section 13.1 (Definitions). The following definitions are hereby amended in their entirety to read as follows: 
 “LIBOR Rate” means, for each Interest Period in respect of LIBOR Credit Extensions comprising part of the same Credit Extensions, an
interest rate per annum (rounded upward to the nearest 1/16th of one percent (0.0625%)) equal to LIBOR for such Interest Period divided by one 








 
(1) minus the Reserve Requirement for such Interest Period; provided however, in no event shall the LIBOR Rate be less than 1.50%. 
 “Prime Rate” is Bank’s most recently announced “prime rate,” even if it is not Bank’s lowest rate; provided
however, in no event shall the Prime Rate be less than 4.00%.  
 “Revolving Line Maturity Date” is May 28,
2010. 
 2.3 Exhibit D, “Form of Compliance Certificate” is hereby amended by deleting it in its entirety and
replacing it with Exhibit A attached hereto. 
 3. Limitation of Amendments. 
 3.1 The amendments set forth in Sections 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 agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect. 
 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 either 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,
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, (b) Bank’s receipt of a commitment fee of $10,000 and (c) payment of all Bank Expenses (including all reasonable attorneys’ fees and reasonable expenses) incurred and invoiced through the date of this Amendment.

 [Signature page follows.] 







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

									
	BANK	 		 	BORROWER
			
	Silicon Valley Bank, as Bank	 		 	3PAR Inc., a Delaware corporation
					
	By:	 	/s/ RAY AGUILAR	 		 	By:	 	/s/ ADRIEL G. LARES
					
	Name:	 	Ray Aguilar	 		 	Name:	 	Adriel G. Lares
	Title:	 	Relationship Manager	 		 	Title:	 	Chief Financial Officer








 Exhibit A 
 EXHIBIT D 
 COMPLIANCE CERTIFICATE 
  

			
	 TO: SILICON VALLEY BANK
	  	Date:                             

 FROM: 
 The undersigned authorized officer of 3PAR Inc. (“Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (the “Agreement”),
(1) Borrower is in complete compliance for the period ending                      with all required covenants except as noted below,
(2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be
applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true,
accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes,
assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries
relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in
accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that
Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in
the Agreement. 
 Please indicate compliance status by circling Yes/No under “Complies” column. 
  

									
	 Reporting Covenant
	  	 Required
	  	 Complies
	  	 
	Quarterly unaudited financial statements and Compliance Certificate	  	(a) Quarterly financial statements, as soon as available, and in any event no later than 45 days following the end of Borrower’s fiscal quarter and (b) as soon as available, but no later
than the earlier of (i) five (5) days after filing with the Securities Exchange Commission (“SEC”) or (ii) 50 days after each fiscal quarter or 90 days after each fiscal year end, the Borrower’s 10K, 10Q, and 8K reports.	  	Yes	  	No	  	N/A
					
	Annual operating budgets and projections (including income statements, balance sheets, and cash flow statements, each of the foregoing,	  	As updated, but no later than 45 days after FYE	  	Yes	  	No	  	N/A









									
	 Reporting Covenant
	  	 Required
	  	 Complies
	  	 
					
	by month) for the upcoming fiscal year	  		  		  		  	
					
	Annual financial statements certified by, and with an unqualified opinion of, independent CPA	  	Annually, no later than 90 days following the end of Borrower’s fiscal year	  	Yes	  	No	  	N/A
					
	Material Litigation*	  	Prompt	  	Yes	  	No	  	N/A
					
	Cash balance report	  	No later than 50 days following the end of Borrower’s fiscal quarter	  	Yes	  	No	  	N/A

  

	*	If yes, attached is a summary of the Material Litigation not previously disclosed by Borrower or any of its Subsidiaries. 

  

							
	 Financial Covenant
	  	 Required
	  	Actual	  	Complies
	Maintain on an applicable Quarterly Basis:	  		  		  	
	Minimum Tangible Net Worth	  	 $85MM plus 50% of new net equity proceeds and 50% of quarterly profits, in each
 case since                     , 2009
	  	$                	  	Yes    No
	Minimum Quick Ratio	  	1.25:1.00	  	            :1.0	  	Yes    No

 The following financial covenant analys[is][es] and information set forth in Schedule 1 attached
hereto are true and accurate as of the date of this Certificate. 
 The following are the exceptions with respect to the certification above:
(If no exceptions exist, state “No exceptions to note.”) 
 _______________________________________________________________________________________________ 
 _______________________________________________________________________________________________ 
 _______________________________________________________________________________________________ 
  

									
	3PAR INC.	 		 	BANK USE ONLY
					
	By:	 		 		 	Received by:	 	 
	Name:	 		 		 		 	AUTHORIZED SIGNER
	Title:	 		 		 	Date:	 	 
		 		 		 		 	
		 		 		 	Verified:	 	 
		 		 		 		 	AUTHORIZED SIGNER
		 		 		 	Date:	 	 
				
		 		 		 	Compliance Status:         Yes   No








 Schedule 1 to Compliance Certificate 
 Financial Covenants of Borrower 
 Dated:
                     
 I. Tangible Net Worth
(Section 6.7(a)) 
 Required: $85,000,000 plus 50% of new net equity proceeds since
                    , 2009 plus 50% of quarterly profits since
                    , 2009 
 Actual: 
  

						
	A.	  	Aggregate value of total assets of Borrower and its Subsidiaries	  	$	                
	B.	  	Aggregate value of liabilities of Borrower and its Subsidiaries (including all Subordinated Indebtedness)	  	$	 
	C.	  	Aggregate value of goodwill of Borrower and its Subsidiaries	  	$	 
	D.	  	Aggregate value of intangible assets of Borrower and its Subsidiaries such as unamortized debt discounts and expenses, patents, trademarks, copyrights and research and development expenses
except prepaid expenses	  	$	 
	E.	  	Aggregate value of any reserves not already deducted from assets	  	$	 
	F.	  	50% of new net equity proceeds received by Borrower since                     ,
2009	  	$	 
	G.	  	50% of quarterly profits of Borrower and its Subsidiaries since                     , 2009
	  	$	 
	H.	  	Tangible Net Worth (line A minus line B minus line C minus line D minus line E plus line F plus line G)	  	$	 

 Is line H equal to or greater than $85,000,000 plus 50% of new net equity proceeds since
                    , 2009 plus 50% of quarterly profits since
                    , 2009 
 _______ No,
not in compliance
                                         
                       _________ Yes, in compliance 
 II. Quick Ratio (Section 6.7(b)) 
 Required: 1.25:1.00 
 Actual: 
  

						
	A.	  	Aggregate value of the unrestricted cash and cash equivalents of Borrower and its Subsidiaries	  	$	                
	B.	  	Aggregate value of 100% of the net billed accounts receivable of Borrower and its Subsidiaries	  	$	 
	C.	  	Aggregate value of short and long term investments	  	$	 
	D.	  	Quick Assets (the sum of lines A, B and C)	  	$	 
	E.	  	Aggregate value of Current Liabilities of Borrower and its Subsidiaries	  	$	 
	F.	  	Quick Ratio (line D divided by line E)	  		








 Is line F equal to or greater than 1.25:1:00? 
  

			
	_______ No, not in compliance	  	________ Yes, in compliance