UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

October 9, 2015(October 5, 2015)

Date of Report (Date of earliest event reported)

 

 

Sonic Foundry, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Maryland   000-30407   39-1783372

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

222 W. Washington Ave

Madison, WI 53703

  (608) 443-1600
(Address of principal executive offices)   (Registrant’s telephone number)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Sonic Foundry, Inc. (the “Company”) and its wholly-owned subsidiary, Sonic Foundry Media Systems, Inc. (“SFMS”) entered into a Sixth Amendment to Second Amended and Restated Loan and Security Agreement (the “Sixth Amendment”) with Silicon Valley Bank (“Silicon Valley”) on October 5, 2015. Under the Sixth Amendment: (i) the Liquidity covenant was modified to require minimum Liquidity (as defined) with respect to the Company only, on a monthly basis, of at least 1.5:1.0 at the last day of each month, replacing the previous Liquidity requirement of 1.35:1.0 for each month-end that is not the last day of a fiscal quarter, and 1.5:1.0 for each month-end that is the last day of a fiscal quarter, and (ii) the Minimum Debt Service covenant was replaced with a requirement to maintain, commencing September 30, 2015, a Minimum EBITDA, as defined, on a trailing six month period, of at least $1.00 plus the net change in Deferred Revenue, as defined, with such covenant measured as of the last day of each fiscal quarter.

The Company also entered into a Modification No. 1 to the Loan and Security Agreement (“Modification No. 1”) with Partners for Growth IV, L.P., which sets forth the same financial covenant modifications as set forth above.

A copy of the both the Sixth Amendment and Modification No. 1 are attached as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and is incorporated herein by reference. The summary above is qualified by reference to the entire document.


Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

10.1    Sixth Amendment to the Second Amended and Restated Loan and Security Agreement entered into as of October 5, 2015 among registrant, SFMS and Silicon Valley Bank.
10.2    Modification No. 1 to the Loan and Security Agreement entered into as of October 5, 2015 among registrant and Partners for Growth IV. L.P.

EXHIBIT LIST

 

NUMBER

  

DESCRIPTION

10.1    Sixth Amendment to the Second Amended and Restated Loan and Security Agreement entered into as of October 5, 2015 among registrant, SFMS and Silicon Valley Bank.
10.2    Modification No. 1 to the Loan and Security Agreement entered into as of October 5, 2015 among registrant and Partners for Growth IV. L.P.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    Sonic Foundry, Inc.
            (Registrant)
                    October 9, 2015     By:  

/s/ Kenneth A. Minor

      Kenneth A. Minor
      Chief Financial Officer

Exhibit 10.1

SIXTH AMENDMENT

TO

SECOND AMENDED AND RESTATED

LOAN AND SECURITY AGREEMENT

This Sixth Amendment to Second Amended and Restated Loan and Security Agreement (this “ Amendment ”) is entered into this 5th day of October, 2015 (the “ Sixth Amendment Effective Date ”), by and between Silicon Valley Bank (“ Bank ”), SONIC FOUNDRY, INC. , Maryland corporation (“ Sonic Foundry ”), and SONIC FOUNDRY MEDIA SYSTEMS, INC., a Maryland corporation (“ Sonic Systems ” and together with Sonic Foundry, jointly and severally, individually and collectively, the “ Borrower ”).

R ECITALS

A. Bank and Borrower have entered into that certain Second Amended and Restated Loan and Security Agreement, dated as of June 27, 2011, as amended by that certain First Amendment, dated as of May 31, 2013, as further amended by that certain Second Amendment, dated as of January 10, 2014, as further amended by that certain Third Amendment, dated as of March 24, 2014, as further amended by that certain Fourth Amendment, dated as of January 27, 2015 and as further amended by that certain Fifth Amendment, dated as of May 13, 2015 (as the same may from time to time be further amended, modified, supplemented or restated, 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 to (i) revise the financial covenants and (iii) make certain other revisions to the Loan Agreement as more fully set forth herein.

D. Bank has agreed to so amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions of, and in reliance upon, the representations and warranties set forth below.

A GREEMENT

N OW , T HEREFORE , 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 6.9(a) (Financial Covenants). Sections 6.9(a) is amended in its entirety and replaced with the following:

 

1


“(a) Liquidity . Liquidity, at all times, tested with respect to Borrower only on a monthly basis, of at least 1.50:1.00.”

2.2 Section 6.9(b) (Financial Covenants) . Section 6.9(b) is amended in its entirety and replaced with the following:

“(b) Minimum EBITDA . Commencing with the period ending September 30, 2015, measured as of the last day of each fiscal quarter, on a trailing six (6) month basis ending as of the date of measurement, (i) EBITDA plus (ii) the net change in Deferred Revenue during such measurement period, of at least $1.00.”

2.3 Section 13.1 (Definitions) . The following new terms and their respective definitions are hereby inserted in Section 13.1, each in its applicable alphabetical order:

“Sixth Amendment Effective Date” is September 30, 2015.

2.4 Section 13.1 (Definitions) . The following terms and their respective definitions are hereby deleted in their entirety from Section 13.1:

“Debt Service” means, for any period of measurement, all regularly scheduled payments of principal and interest of Indebtedness of Borrower and its Subsidiaries, other than Permitted Earnout Payments, determined on a consolidated basis due within the trailing twelve (12) month period ended as of such date of measurement.

“Debt Service Coverage Ratio” is defined in Section 6.9(b).

2.5 Compliance Certificate . The Compliance Certificate attached as Exhibit C to the Loan Agreement is deleted in its entirety and replaced with Exhibit A attached hereto.

3. Limitation of Amendments.

3.1 The amendments set forth in Section 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. [Reserved].

5. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows:

 

2


5.1 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;

5.2 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;

5.3 The organizational documents of Borrower previously delivered to Bank remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect, or updated copies have otherwise been delivered to Bank in connection with the execution of this Amendment;

5.4 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;

5.5 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;

5.6 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

5.7 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.

6. Ratification of Intellectual Property Security Agreement . Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Amended and Restated Intellectual Property Security Agreement dated as of May 13, 2015 between Borrower and Bank, and acknowledges, confirms and agrees that said Intellectual Property Security Agreement (a) contains an accurate and complete listing of all Intellectual Property Collateral, as defined in said Intellectual Property Security Agreement, and (b) shall remain in full force and effect.

7. Ratification of Perfection Certificate. Borrower hereby ratifies, confirms and

 

3


reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate dated as of May 13, 2015 between Borrower and Bank, and acknowledges, confirms and agrees the disclosures and information Borrower provided to Bank in said Perfection Certificate have not changed, as of the date hereof.

8. No Defenses of Borrower. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims, or counterclaims against 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 Bank, whether known or unknown, at law or in equity, all of them are hereby expressly WAIVED and Borrower hereby RELEASES Bank from any liability thereunder.

9. Integration. This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents.

10. 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.

11. Effectiveness. This Amendment shall be deemed effective upon (a) the due execution and delivery to Bank of this Amendment by each party hereto, (b) updated Secretary’s Corporate Borrowing Certificates for each Borrower (with updated attachments, if necessary), (c) an acknowledgment and reaffirmation of the existing Subordination Agreements, (d) payment by Borrower of a non-refundable amendment fee equal to Ten Thousand Dollars ($10,000), which amendment fee shall be fully-earned as of the date hereof, and (e) payment of Bank’s legal fees and expenses incurred in connection with the existing Loan Documents and this Amendment.

12. Post-Closing Matters. On or before June 16, 2016, Borrower shall pay to Bank an additional fully earned, non-refundable Revolving Line anniversary fee in an amount equal to Twenty Six Thousand Six Hundred Sixty Seven Dollars ($26,667).

[Signature page follows.]

 

4


I N W ITNESS W HEREOF , the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.

 

BANK
SILICON VALLEY BANK
By   /s/ Tom Hertzberg
Name:   Tom Hertzberg
Title:   Vice President

 

BORROWER
SONIC FOUNDRY, INC.
By   /s/ Ken Minor
Name:   Ken Minor
Title:   CFO

 

SONIC FOUNDRY MEDIA SYSTEMS, INC.
By   /s/ Ken Minor
Name:   Ken Minor
Title:   CFO


Exhibit A to Sixth Amendment

EXHIBIT C

COMPLIANCE CERTIFICATE

 

TO:   SILICON VALLEY BANK    Date:                                         
FROM:   SONIC FOUNDRY, INC.   
  SONIC FOUNDRY MEDIA SYSTEMS, INC.   

The undersigned authorized officer of SONIC FOUNDRY, INC. and SONIC FOUNDRY MEDIA SYSTEMS, INC. (“ Borrower ”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, 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, if any, 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 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

Monthly financial statements with Compliance Certificate    Monthly within 30 days    Yes    No
Annual financial statement (CPA Audited) + CC    FYE within 120 days    Yes    No
10-Q, 10-K and 8-K    Within 5 days after filing with SEC    Yes    No
A/R & A/P Agings    Monthly within 15 days    Yes    No
Transaction Reports    Monthly within 15 days and with each request for a Credit Extension    Yes    No
Projections    Within fifteen (15) following approval by the Borrower’s board of directors, and in any event within fifteen (15) days after the end of each fiscal year of Borrower, and as amended and/or updated    Yes    No


The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)

 

Financial Covenant

  

Required

    

Actual

    

Complies

 

Maintain as indicated:

        

Minimum Liquidity (monthly)

     1.50:1.00                     :1.0         Yes     No   

Minimum EBITDA (quarterly)

   > $ 1.00       $                      Yes     No   

Maximum Subsidiary Indebtedness (at all times)

   <$ 500,000       $                      Yes     No   

The following financial covenant analyses 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.”)

 

 

 

 

 

SONIC FOUNDRY, INC.     BANK USE ONLY
SONIC FOUNDRY MEDIA SYSTEMS, INC.    
    Received by:                                         
                               AUTHORIZED SIGNER
By:  

 

    Date:                                                        
Name:  

 

   
Title:  

 

    Verified:                                                    
                                 AUTHORIZED SIGNER
      Date:                                                        
      Compliance Status:     Yes        No


Schedule 1 to Compliance Certificate

Financial Covenants of Borrower

In the event of a conflict between this Schedule and the Loan Agreement, the terms of the Loan Agreement shall govern.

Dated:                             

 

I. Liquidity (Section 6.9(a))

Required: Liquidity, at all times, tested with respect to Borrower only on a monthly basis, of at least 1.50:1.00.

Actual:

 

    A.    Aggregate value of Borrower’s unrestricted cash at Bank    $                
    B.    Aggregate value of the net billed accounts receivable of Borrower    $     
    C.    Quick Assets (the sum of lines A plu s B)    $     
    D.    Aggregate value of Obligations to Bank    $     
    J.    LIQUIDITY (line C divided by line D), expressed as a ratio                  :1.00   

Is line J equal to or greater than         :1:50?

 

             No, not in compliance                 Yes, in compliance


II. Minimum EBITDA (Section 6.9(b))

Required: Commencing with the period ending September 30, 2015, measured as of the last day of each fiscal quarter, on a trailing six (6) month basis ending as of the date of measurement, (i) EBITDA plus (ii) the net change in Deferred Revenue during such measurement period, of at least $1.00.

Actual: All amounts measured on a trailing six (6) month basis

 

    A.

   EBITDA    $                

    B.

   The net change in Deferred Revenue    $                

Is line A plus line B equal to or greater than $1.00?

 

            No, not in compliance.                Yes, in compliance.

Exhibit 10.2

MODIFICATION NO 1. TO

LOAN AND SECURITY AGREEMENT

This Modification No. 1 to Loan and Security Agreement (this “ Modification ”) is entered into as of September 30, 2015 (the “ Modification Effective Date ”), by and between Partners for Growth IV, L.P., a Delaware limited partnership with its principal place of business at 150 Pacific Avenue, San Francisco, California 94111 (“ PFG ”) and Sonic Foundry, Inc., a Maryland corporation with its principal place of business at 222 W. Washington Avenue, Madison, WI 53703 (“ Borrower ”). This Modification amends that certain Loan and Security Agreement between PFG and Borrowers dated as of May 14, 2015 (the “ Loan Agreement ”). The Loan Agreement is modified herein for the purposes of adjusting the financial covenants set forth in Section 5 of the Schedule and related terms and definitions.

NOW THEREFORE, the parties hereby agree as follows:

1. DESCRIPTION OF EXISTING INDEBTEDNESS : As of the Modification Effective Date, Borrower is indebted to PFG for the Obligations pursuant to the Loan Documents in the aggregate principal amount $1,500,000, all of which is outstanding and unpaid. Defined terms used but not otherwise defined herein shall have the same meanings set forth in the Loan Agreement.

2. DESCRIPTION OF COLLATERAL . Repayment of the Obligations is secured by the Collateral, as described in the Loan Agreement, in that certain Intellectual Property Security Agreement and related Collateral Agreements and Notices of even date with the Loan Agreement (the “ IP Agreement ”) and the other Loan Documents entered into on the dates of the Loan Agreement and the Loan Agreement. The above-described security documents, together with all other documents securing and/or perfecting security interests in the repayment of the Obligations, shall be referred to herein as the “ Security Documents ”. Hereinafter, the Security Documents, together with all other documents evidencing or securing the Obligations are referred to as the “ Existing Loan Documents ”.

 

3. DESCRIPTION OF CHANGES IN TERMS . As from the Modification Effective Date:

3.1 Definitions . The definitions of “Debt Service” and “DSC” (in relation to “Ratio”) are hereby deleted in their entirety from Section 7 of the Loan Agreement and Section 5 of the Schedule, respectively, and the terms “Modification” and “Modification Effective Date” are hereby added to Section 7 of the Loan Agreement, each in its applicable alphabetical order.

3.2 New Financial Covenant . Section 5(a) (Debt Service Coverage (“DSC”) Ratio) is deleted with effect from the Modification Effective Date and replaced with the following:

 

“(b)   Minimum EBITDA:   Commencing with the period ending September 30, 2015, measured as of the last day of each fiscal quarter, on a trailing six (6) month basis ending as of the date of measurement, Borrower shall maintain (i) EBITDA plus (ii) the net change in Deferred Revenue during such measurement period, of at least $1.00.”


3.3 Modification of Minimum Liquidity Financial Covenant . The first clause of Section 5(b) of the Schedule is hereby amended to read in its entirety as follows:

 

“(b)   Minimum Liquidity:   Borrower shall maintain a minimum Liquidity Ratio at all times, tested with respect to Borrower only on a monthly basis, of at least 1.50:1.00.”

3.4 Update to Compliance Certificate . The Compliance Certificate is amended and superseded in the form appended to this Modification as Exhibit A .

4. PAYMENT OF FEES AND EXPENSES . Borrower shall pay promptly upon invoice all of PFG’s reasonable and documented out-of-pocket costs and expenses in connection with this Modification.

 

5. BORROWERS’ REPRESENTATIONS AND WARRANTIES . Borrower represents and warrants that:

(a) immediately upon giving effect to this Modification (i) the representations and warranties contained in the Existing Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent qualified in the updated Representations deliverable to PFG on or before the Modification Effective Date), and (ii) no Event of Default has occurred and is continuing;

(b) Borrower has the corporate power and authority to execute and deliver this Modification and to perform its obligations under the Existing Loan Documents, as amended by this Modification;

(c) the certificate of incorporation, bylaws and other organizational documents of Borrower delivered to PFG remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;

(d) the execution and delivery by Borrower of this Modification and the performance by Borrower of its obligations under the Existing Loan Documents, as amended by this Modification, have been duly authorized by all necessary corporate action on the part of Borrower;

(e) this Modification has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against it in accordance with the terms of this Modification, 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;

(f) as of the date hereof, Borrower has no defenses against its obligation to repay the Obligations and it has no claims of any kind against PFG. Borrower


acknowledges that PFG has acted in good faith and has conducted in a commercially reasonable manner its relationship with such Borrower in connection with this Modification and in connection with the Existing Loan Documents;

(g) the Security Documents relating to Intellectual Property either disclose an accurate, complete and current listing of all Collateral that consists of Intellectual Property; and

(h) Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations dated as the Modification Effective Date, appended as Exhibit B hereto, and acknowledges, confirms and agrees that the disclosures and information Borrower provided to PFG therein remain true, correct, accurate and complete as of the Modification Effective Date.

Borrower understands and acknowledges that PFG is entering into this Modification in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.

6. CONTINUING VALIDITY . Borrower understands and agrees that in modifying the existing Obligations, PFG is relying upon Borrower’s representations, warranties, and agreements, as set forth in the Existing Loan Documents. Except as expressly modified pursuant to this Modification, the terms of the Existing Loan Documents remain unchanged and in full force and effect. PFG’s agreement to modifications to the existing Obligations in no way shall obligate PFG to make any future consents, waivers or modifications to the Obligations. Nothing in this Modification shall constitute a satisfaction of the Obligations or a waiver of any default under the Existing Loan Documents. It is the intention of PFG and Borrower to retain as liable parties all makers and endorsers, if any, of the Existing Loan Documents, unless the party is expressly released by PFG in writing. Unless expressly released herein, no maker, endorser, or guarantor will be released by virtue of this Modification. The terms of this paragraph apply not only to this Modification, but also to all subsequent loan modification agreements.

7. CONDITIONS . The effectiveness of this Modification is conditioned upon each of:

7 .1 Execution and Delivery . Borrower and Guarantor shall have duly executed and delivered a counterpart of this Modification to PFG.

7.2 Constitutional and Authority Documents . To the extent the same may have been modified or superseded or are no longer accurate since the date of the Loan Agreement, PFG shall have received copies, certified by a duly authorized officer of Borrower, to be true and complete as of the date hereof, of each of (i) the governing documents of Borrower as in effect on the date hereof, (ii) any necessary resolutions of Borrower authorizing the execution and delivery of this Modification, the other documents executed in connection herewith and Borrower’s performance of all of the transactions contemplated hereby, and (iii) an incumbency certificate giving the name and bearing a specimen signature of each individual who shall be so authorized on behalf of Borrower.


7.3 Lender Expenses . Borrower shall have promptly paid all Lender Expenses invoiced by PFG.

The failure of any of the conditions set forth in this Section 7 shall constitute an immediate Event of Default.

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

9. RATIFICATION OF EXISTING LOAN DOCUMENTS . Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of the Existing Loan Document and all security or other collateral granted to PFG thereunder, and confirms that the Indebtedness secured thereby includes, without limitation, the Obligations.

10. FURTHER ASSURANCES . Borrower agrees to execute such further documents and instruments and to take such further actions as PFG may request in its good faith business judgment to carry out the purposes and intent of this Modification.

11. INTEGRATION; CONSTRUCTION . This Modification, the Loan Agreement and the Existing Loan Documents (as modified) and any documents executed in connection herewith or pursuant hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, offers and negotiations, oral or written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Modification; provided, however, that any financing statements or other agreements or instruments filed by PFG with respect to Borrower shall remain in full force and effect. The Existing Loan Documents are hereby amended wherever necessary to reflect the modifications set forth in this Modification. The quotation marks around modified clauses set forth herein and any differing font styles in which such clauses are presented herein are for ease of reading only and shall be ignored for purposes of construing and interpreting this Modification. This Modification is subject to the General Provisions of Section 8 of the Loan Agreement.

12. GOVERNING LAW; VENUE . THIS MODIFICATION SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Borrower and PFG submit to the exclusive jurisdiction of the State and Federal courts in Santa Clara County, California, in connection with any proceeding or dispute arising in connection herewith.

[Signature Page Follows]


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

 

Borrower:     PFG:
SONIC FOUNDRY, INC.     PARTNERS FOR GROWTH IV, L.P.
By   /s/ Ken Minor     By   /s/ Jason Georgatos
      Chief Financial Officer     Name:        Jason Georgatos
      Title: Manager, Partners for Growth IV, LLC, its General Partner

Signature Page to PFG - Sonic Foundry, Inc. Modification No. 1 to Loan and Security Agreement


Exhibit A – Updated Compliance Certificate

Attached.