EXHIBIT 10.67
FIRST LOAN MODIFICATION AGREEMENT
This First Loan Modification Agreement (this "Loan Modification Agreement") is
entered into as of January 27, 2005, 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 400 Madison Avenue, Suite 15A, New York, New York 10017 ("Bank") and AXS-ONE
INC., a Delaware corporation with its chief executive office located at 301
Route 17 North, Rutherford, New Jersey 07070 ("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 AUGUST 11, 2004,
EVIDENCED BY, AMONG OTHER DOCUMENTS, A CERTAIN LOAN AND SECURITY AGREEMENT DATED
AS OF AUGUST 11, 2004, BETWEEN BORROWER AND BANK (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 (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.
A.
MODIFICATIONS TO LOAN AGREEMENT.
1
THE LOAN AGREEMENT SHALL BE AMENDED BY DELETING THE FOLLOWING
TEXT APPEARING AS SUBSECTION (B)(I)(B) OF SECTION 6.6 THEREOF, ENTITLED
"EBITDA":
"(B) ($100,000.00), for the six (6) month period ending December 31, 2004,"
and inserting in lieu thereof the following:
"(B) ($3,400,000.00), for the six (6) month period ending December 31, 2004,"
2
THE COMPLIANCE CERTIFICATE APPEARING AS EXHIBIT D TO THE LOAN
AGREEMENT IS HEREBY REPLACED WITH THE COMPLIANCE CERTIFICATE ATTACHED AS EXHIBIT
A HERETO.
B.
WAIVERS.
1
BANK HEREBY WAIVES BORROWER'S EXISTING DEFAULT UNDER THE LOAN
AGREEMENT BY VIRTUE OF BORROWER'S FAILURE TO COMPLY WITH THE FINANCIAL COVENANT
SET FORTH IN SECTION 6.6(B)(I)(A) THEREOF AS OF THE QUARTER ENDED SEPTEMBER 30,
2004. BANK'S WAIVER OF BORROWER'S COMPLIANCE OF SAID FINANCIAL COVENANT SHALL
APPLY ONLY TO THE FOREGOING SPECIFIC PERIOD.
4.
FEES.
Borrower shall pay to Bank a modification fee equal to Ten
Thousand Dollars ($10,000,000) (the "Modification Fee"), which Modification Fee
shall be due on the date hereof and shall be deemed fully earned as of the date
hereof. Notwithstanding the foregoing, Bank will waive the Modification Fee
provided that Borrower transfer all of its cash management business and excess
cash to Bank on or prior to February 1, 2005. The Borrower shall also reimburse
Bank for all legal fees and expenses incurred in connection with this amendment
to the Existing Loan Documents.
5.
RATIFICATION OF PERFECTION CERTIFICATE.
Borrower hereby
ratifies, confirms and reaffirms, all and singular, the terms and disclosures
contained in a certain Perfection Certificate dated as of August 11, 2004
between Borrower and Bank, and acknowledges, confirms and agrees the disclosures