{"id":41133,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-and-security-agreement-silicon-valley-bank-and-akamai.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-and-security-agreement-silicon-valley-bank-and-akamai","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/loan-and-security-agreement-silicon-valley-bank-and-akamai.html","title":{"rendered":"Loan and Security Agreement &#8211; Silicon Valley Bank and Akamai Technologies Inc."},"content":{"rendered":"<pre>                           LOAN AND SECURITY AGREEMENT\n                            AKAMAI TECHNOLOGIES, INC.\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                                               Page\n\n                                                                                                         \n1        ACCOUNTING AND OTHER TERMS...............................................................................4\n\n2        LOAN AND TERMS OF PAYMENT................................................................................4\n         2.1      Credit Extensions...............................................................................4\n         2.2      Interest Rate, Payments.........................................................................5\n         2.3      Fees............................................................................................6\n\n3        CONDITIONS OF LOANS......................................................................................6\n         3.1      Conditions Precedent to Initial Credit Extension................................................6\n         3.2      Conditions Precedent to all Credit Extensions...................................................6\n\n4        CREATION OF SECURITY INTEREST............................................................................7\n         4.1      Grant of Security Interest......................................................................7\n\n5        REPRESENTATIONS AND WARRANTIES...........................................................................7\n         5.1      Due Organization and Authorization..............................................................7\n         5.2      Collateral......................................................................................7\n         5.3      Litigation......................................................................................7\n         5.4      No Material Adverse Change in Financial Statements..............................................7\n         5.5      Solvency........................................................................................7\n         5.6      Regulatory Compliance...........................................................................7\n         5.7      Full Disclosure.................................................................................8\n\n6        AFFIRMATIVE COVENANTS....................................................................................8\n         6.1      Government Compliance...........................................................................8\n         6.2      Financial Statements, Reports...................................................................8\n         6.3      Taxes...........................................................................................8\n         6.4      Insurance.......................................................................................9\n         6.5      Primary Accounts................................................................................9\n         6.6      Further Assurances..............................................................................9\n         6.7      Loss; Destruction; or Damage....................................................................9\n\n7        NEGATIVE COVENANTS.......................................................................................9\n         7.1      Borrower will not do any of the following.......................................................9\n\n8        EVENTS OF DEFAULT.......................................................................................10\n         8.1      Payment Default................................................................................10\n         8.2      Covenant Default...............................................................................10\n         8.3      Material Adverse Change........................................................................10\n         8.4      Attachment.....................................................................................10\n         8.5      Insolvency.....................................................................................10\n         8.6      Other Agreements...............................................................................11\n         8.7      Judgments......................................................................................11\n         8.8      Misrepresentations.............................................................................11\n\n9        BANK'S RIGHTS AND REMEDIES..............................................................................11\n         9.1      Rights and Remedies............................................................................11\n         9.2      Power of Attorney..............................................................................11\n         9.3      Bank Expenses..................................................................................12\n\n\n                                       2\n\n\n<font size=\"2\">\n                                                                                                           \n         9.4      Bank's Liability for Collateral................................................................12\n         9.5      Remedies Cumulative............................................................................12\n         9.6      Demand Waiver..................................................................................12\n\n10       NOTICES.................................................................................................12\n\n11       CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER..............................................................12\n\n12       GENERAL PROVISIONS......................................................................................13\n         12.1     Successors and Assigns.........................................................................13\n         12.2     Indemnification. ..............................................................................13\n         12.3     Time of Essence................................................................................13\n         12.4     Severability of Provision......................................................................13\n         12.5     Amendments in Writing, Integration.............................................................13\n         12.6     Counterparts...................................................................................13\n         12.7     Survival.......................................................................................13\n         12.8     Confidentiality................................................................................14\n         12.9     Countersignature...............................................................................14\n         12.10    Attorneys' Fees, Costs and Expenses............................................................14\n\n13       DEFINITIONS.............................................................................................14\n         13.1     Definitions....................................................................................14\n<\/font>\n\n\n\n\n                                       3\n\n         This LOAN AND SECURITY AGREEMENT dated January 27,1999, between SILICON\nVALLEY BANK ('Bank'), a California-chartered bank with its principal place of\nbusiness at 3003 Tasman Drive, Santa Clara, California 95054 with a loan\nproduction office located at 40 William St., Ste. 350, Wellesley, Massachusetts\n02481 doing business as 'Silicon Valley East' and AKAMAI TECHNOLOGIES, INC.\n('Borrower'), whose address is 201 Broadway, 4th Floor, Cambridge, Massachusetts\n02139 provides the terms on which Bank will lend to Borrower and Borrower will\nrepay Bank. The parties agree as follows:\n\n1        ACCOUNTING AND OTHER TERMS\n\n         Accounting terms not defined in this Agreement will be construed\nfollowing GAAP. Calculations and determinations must be made following GAAP. The\nterm 'financial statements' includes the notes and schedules. The terms\n'including' and 'includes' always mean 'including (or includes) without\nlimitation,' in this or any Loan Document. This Agreement shall be construed to\nimpart upon Bank a duty to act reasonably at all times.\n\n2        LOAN AND TERMS OF PAYMENT\n\n2.1      CREDIT EXTENSIONS.\n\n         Borrower will pay Bank the unpaid principal amount of all Credit\nExtensions and interest on the unpaid principal amount of the Credit Extensions.\n\n2.1.1    EQUIPMENT FACILITY.\n\n         Subject to the terms and conditions of this Agreement, Bank agrees to\nlend to Borrower, from time to time prior to the Commitment Termination Date,\nequipment advances (each an 'Equipment Advance' and collectively the 'Equipment\nAdvances'). If prepaid, the principal of the Equipment Advances may not be\nre-borrowed. The proceeds of the Equipment Advances will be used solely to\nreimburse Borrower for the purchase of Eligible Equipment. Each Equipment\nAdvance shall be considered a promissory note evidencing the amounts due\nhereunder for all purposes. Bank's obligation to lend hereunder shall terminate\non the earlier of (i) the occurrence and continuance of an Event of Default, and\n(ii) the Commitment Termination Date. For purposes of this Section, the minimum\namount of each Equipment Advance is $50,000 and the maximum number of Equipment\nAdvances that will be made are 6.\n\n         (a) To obtain an Equipment Advance, Borrower will deliver to Bank a\ncompleted supplement in substantially the form attached ('Loan Supplement'),\ntogether with invoices and such additional information as Bank may request at\nleast five (5) Business Days before the proposed funding date (the 'Funding\nDate'). On each Funding Date, Bank will specify in the Loan Supplement for each\nEquipment Advance, the Basic Rate, the Loan Factor, the Payment Dates, and a\ntable of Stipulated Loan Values, together with a UCC Financing Statement\ncovering the Equipment described on the Loan Supplement. If Borrower satisfies\nthe conditions of each Equipment Advance specified from time to time by Bank,\nBank will disburse such Equipment Advance by internal transfer to Borrower's\ndeposit account with Bank.\n\n         (b) Bank's obligation to lend the undisbursed portion of the Committed\nEquipment Line will terminate if, in Bank's sole discretion, there has been a\nmaterial adverse change in the general affairs, management, results of\noperation, condition (financial or otherwise) or the prospects of Borrower,\nwhether or not arising from transactions in the ordinary course of business, or\nthere has been material adverse deviation by Borrower from the most recent\nbusiness plan of Borrower presented to and accepted by Bank prior to the\nexecution of this Agreement.\n\n                                       4\n\n2.2      INTEREST RATE, PAYMENTS.\n\n         (a) Principal and Interest Payments On Payment Dates. Borrower will\nmake payments monthly in advance of principal and accrued interest for each\nEquipment Advance (collectively, 'Scheduled Payments'), on the first Business\nDay of the month following the Funding Date (or commencing on the Funding Date\nif the Funding Date is the first Business Day of the month) with respect to such\nEquipment Advance and continuing thereafter during the Repayment Period on the\nfirst Business Day of each calendar month (each a 'Payment Date'), in an amount\nequal to the Loan Factor multiplied by the Loan Amount for such Equipment\nAdvance as of such Payment Date. All unpaid principal and accrued interest is\ndue and payable in full on the last Payment Date with respect to such Equipment\nAdvance. An Equipment Advance may be prepaid only upon payment of a prepayment\npremium specified by Bank.\n\n         (b) Interest Rate. Borrower will pay interest on the unpaid principal\namount of each Equipment Advance from the first Payment Date after the Funding\nDate of such Equipment Advance until the Equipment Advance has been paid in\nfull, at the per annum rate of interest equal to the Basic Rate determined by\nBank as of the Funding Date for each Equipment Advance in accordance with the\ndefinition of the Basic Rate. 'Basic Rate' is, as of the Funding Date, the per\nannum rate of interest (based on a year of 360 days) equal to the sum of (a) the\nU.S. Treasury note yield to maturity for a term equal to the Treasury Note\nMaturity as quoted in The Wall Street Journal on the day the applicable Loan\nTerms Schedule is prepared, plus (b) the applicable Loan Margin for the type of\nEligible Equipment being financed. The Loan Margin is 275 basis points. The\nTreasury Note Maturity is 36 months.\n\n         (c) Interim Payment. In addition to the Scheduled Payments, on the\nFunding Date for each Equipment Advance (unless the Funding Date is the first\nBusiness Day of the month) Borrower shall pay to Bank, on behalf of Bank, an\namount (the 'Interim Payment') equal to the initial Equipment Advance multiplied\nby the product of (i) the quotient derived from dividing the initial Loan Factor\nwith respect to such Equipment Advance multiplied by 30, and (ii) the number of\ndays from the Funding Date of the Equipment Advance Loan until the first Payment\nDate with respect to such Equipment Advance.\n\n         (d) Final Payment. On the Maturity Date with respect to such Equipment\nAdvance, Borrower will pay, in addition to the unpaid principal and accrued\ninterest and all other amounts due on such date with respect to such Equipment\nAdvance, an amount equal to the Final Payment. 'Final Payment' is with respect\nto each Equipment Advance, a payment (in addition to and not a substitution for\nthe regular monthly payments of principal plus accrued interest) due on the\nmaturity date for such Equipment Advance equal to the Loan Amount for such\nEquipment Advance at such time multiplied by the Final Payment Percentage.\n\n         'Final Payment Percentage' is, for each Equipment Advance, 7.5%.\n\n         'Loan Amount' is the original principal amount of the Equipment Advance\nless the aggregate of all Prepayment Amounts relating to payments of such\nEquipment Advance prior to such dates.\n\n         Prepayment Amount means in the case of the mandatory repayment in\naccordance with Section 2.2(e) and Section 6.7, the Original Stated Cost of the\nitem of Financed Equipment with respect to which such prepayment relates.\n\n         'Original Stated Cost' is (i) the original cost of the New Equipment,\nthe original cost to the Borrower of the item of New Equipment net of any and\nall freight, installation, tax or (ii) the fair market value assigned to such\nitem of Used Equipment by mutual agreement of Borrower and Bank at the time of\nmaking of the Equipment Advance.\n\n         (e) Prepayment Upon an Event of Loss. If any Financed Equipment is\nsubject to an Event of Loss and Borrower is required to or elects to prepay the\nEquipment Advance with respect to such\n\n\n                                       5\n\nFinanced Equipment pursuant to Section 6.7, then such Equipment Advance shall be\nprepaid to the extent and in the manner provided in such section.\n\n         (f) Mandatory Prepayment Upon an Acceleration. If the Equipment\nAdvances are accelerated following the occurrence of an Event of Default or\notherwise (other than following an Event of Loss), then Borrower will\nimmediately pay to Bank (i) all unpaid Scheduled Payments with respect to each\nEquipment Advance due prior to the date of prepayment, (ii) the Stipulated Loss\nValue with respect to each Equipment Advance, and (iii) all other sums, if any,\nthat shall have become due and payable with respect to any Equipment Advance.\n\n         (g) Borrower will repay the Equipment Advances on the terms provided in\nthe Loan Supplement. An Equipment Advance may be prepaid only upon payment of a\nprepayment premium specified from time to time by Bank. Any amounts outstanding\nduring the continuance of an Event of Default shall bear interest at a per annum\nrate equal to the Basic Rate plus 5 percent. If any change in the law increases\nBank's expenses or decreases its return from the Equipment Advances, Borrower\nwill pay Bank upon request the amount of such increase or decrease.\n\n         (h) Bank may debit any of Borrower's deposit accounts including Account\nNumber _____________ for principal and interest payments or any amounts Borrower\nowes Bank. Bank will notify Borrower when it debits Borrower's accounts. These\ndebits are not a set-off. Payments received after 12:00 noon Eastern time are\nconsidered received at the opening of business on the next Business Day. When a\npayment is due on a day that is not a Business Day, the payment is due the next\nBusiness Day and additional fees or interest accrue.\n\n2.3      FEES.\n\n         Borrower will pay:\n\n         (a) Bank Expenses. All Bank Expenses (including reasonable attorneys'\nfees and expenses) incurred through and after the date of this Agreement, are\npayable when due.\n\n3        CONDITIONS OF LOANS\n\n3.1      CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION.\n\n         Bank's obligation to make the initial Credit Extension is subject to\nthe condition precedent that it receive the agreements, documents and fees it\nrequires.\n\n3.2      CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.\n\n         Bank's obligations to make each Credit Extension, including the initial\nCredit Extension, is subject to the following:\n\n         (a)      timely receipt of any Payment\/Advance Form, together with an\ninvoice for the Equipment purchased; and\n\n         (b) the representations and warranties in Section 5 must be materially\ntrue on the date of the Payment\/Advance Form and on the effective date of each\nCredit Extension and no Event of Default may have occurred and be continuing, or\nresult from the Credit Extension. Each Credit Extension is Borrower's\nrepresentation and warranty on that date that the representations and warranties\nof Section 5 remain true.\n\n                                       6\n\n4        CREATION OF SECURITY INTEREST\n\n4.1      GRANT OF SECURITY INTEREST.\n\n         Borrower grants Bank a continuing security interest in all presently\nexisting and later acquired Collateral to secure all Obligations and performance\nof each of Borrowers duties under the Loan Documents. Any security interest will\nbe a first priority security interest in the Collateral. Bank may place a 'hold'\non any deposit account pledged as Collateral.\n\n5        REPRESENTATIONS AND WARRANTIES\n\n         Borrower represents and warrants as follows:\n\n5.1      DUE ORGANIZATION AND AUTHORIZATION.\n\n         Borrower and each Subsidiary is duly existing and in good standing in\nits state of formation and qualified and licensed to do business in, and in good\nstanding in, any state in which the conduct of its business or its ownership of\nproperty requires that it be qualified.\n\n         The execution, delivery and performance of the Loan Documents have been\nduly authorized, and do not conflict with Borrower's formation documents, nor\nconstitute an event of default under any material agreement by which Borrower is\nbound. Borrower is not in default under any agreement to which or by which it is\nbound in which the default could cause a Material Adverse Change.\n\n5.2      COLLATERAL.\n\n         Borrower has good title to the Collateral, free from liens. All\nInventory is in all material respects of good and marketable quality, free from\nmaterial defects.\n\n5.3      LITIGATION.\n\n         Except as shown in the Schedule, there are no actions or proceedings\npending or, to Borrower's knowledge, threatened by or against Borrower or any\nSubsidiary in which an adverse decision could cause a Material Adverse Change.\n\n5.4      NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS.\n\n         All consolidated financial statements for Borrower, and any Subsidiary,\ndelivered to Bank fairly present in all material respects Borrower's\nconsolidated financial condition and Borrower's consolidated results of\noperations. There has not been any material deterioration in Borrower's\nconsolidated financial condition since the date of the most recent financial\nstatements submitted to Bank.\n\n5.5      SOLVENCY.\n\n         The fair salable value of Borrowers assets (including goodwill minus\ndisposition costs) exceeds the fair value of its liabilities; the Borrower is\nnot left with unreasonably small capital after the transactions in this\nAgreement; and Borrower is able to pay its debts (including trade debts) as they\nmature.\n\n5.6      REGULATORY COMPLIANCE.\n\n         Borrower is not an 'investment company' or a company 'controlled' by an\n'investment company' under the Investment Company Act. Borrower is not engaged\nas one of its important activities in extending credit for margin stock (under\nRegulations G, T and U of the Federal Reserve Board of Governors). Borrower has\ncomplied with the Federal Fair Labor Standards Act. Borrower has not violated\n\n\n                                       7\n\nany laws, ordinances or rules, the violation of which could cause a Material\nAdverse Change. None of Borrower's or any Subsidiary's properties or assets has\nbeen used by Borrower or any Subsidiary or, to the best of Borrower's knowledge,\nby previous Persons, in disposing, producing, storing, treating, or transporting\nany hazardous substance other than legally. Borrower and each Subsidiary has\ntimely filed all required tax returns and paid, or made adequate provision to\npay, all taxes, except those being contested in good faith with adequate\nreserves under GAAP. Borrower and each Subsidiary has obtained all consents,\napprovals and authorizations of, made all declarations or filings with, and\ngiven all notices to, all government authorities that are necessary to continue\nits business as currently conducted.\n\n5.7      FULL DISCLOSURE.\n\n         No representation, warranty or other statement of Borrower in any\ncertificate or written statement given to Bank contains any untrue statement of\na material fact or omits to state a material fact necessary to make the\nstatements contained in the certificates or statements not misleading.\n\n6        AFFIRMATIVE COVENANTS\n\n         Borrower will do all of the following:\n\n6.1      GOVERNMENT COMPLIANCE.\n\n         Borrower will maintain its and all Subsidiaries' legal existence and\ngood standing in its jurisdiction of formation and maintain qualification in\neach jurisdiction in which the failure to so qualify could have a material\nadverse effect on Borrower's business or operations. Borrower will comply, and\nhave each Subsidiary comply, with all laws, ordinances and regulations to which\nit is subject, noncompliance with which could have a material adverse effect on\nBorrower's business or operations or cause a Material Adverse Change.\n\n6.2      FINANCIAL STATEMENTS, REPORTS.\n\n         (a) Borrower will deliver to Bank: (i) as soon as available, but not\nlater than 30 days after the last day of each month, a company prepared\nconsolidated balance sheet and income statement covering Borrower's consolidated\noperations during the period, in a form and certified by a Responsible Officer\nacceptable to Bank; (ii) as soon as available, but not later than 90 days after\nthe last day of Borrower's fiscal year, audited consolidated financial\nstatements prepared under GAAP, consistently applied, together with an\nunqualified opinion on the financial statements from Pricewaterhouse Coopers,\nLLP or another independent certified public accounting firm reasonable\nacceptable to Bank; (iii) a prompt report of any legal actions pending or\nthreatened against Borrower or any Subsidiary that could result in damages or\ncosts to Borrower or any Subsidiary of $100,000 or more; and (iv) budgets, sales\nprojections, operating plans or other financial information Bank requests.\n\n         (b) Bank has the right to audit Borrower's Collateral upon an Event of\nDefault has occurred and is continuing.\n\n6.3      TAXES.\n\n         Borrower will make, and cause each Subsidiary to make, timely payment\nof all material federal, state, and local taxes or assessments and will deliver\nto Bank, on demand, appropriate certificates attesting to the payment.\n\n                                       8\n\n6.4      INSURANCE.\n\n         Borrower will keep its business and the Collateral insured for risks\nand in amounts, as Bank requests. Insurance policies will be in a form, with\ncompanies, and in amounts that are satisfactory to Bank. All property policies\nwill have a lender's loss payable endorsement showing Bank as an additional loss\npayee and all liability policies will show the Bank as an additional insured and\nprovide that the insurer must give Bank at least 20 days notice before canceling\nits policy. At Bank's request, Borrower will deliver certified copies of\npolicies and evidence of all premium payments. Proceeds payable under any policy\nwill, at Bank's option, be payable to Bank on account of the Obligations.\n\n6.5      PRIMARY ACCOUNTS.\n\n         Borrower will maintain its primary depository and operating accounts\nwith Bank.\n\n6.6      FURTHER ASSURANCES.\n\n         Borrower will execute any further instruments and take further action\nas Bank requests to perfect or continue Bank's security interest in the\nCollateral or to effect the purposes of this Agreement.\n\n6.7      LOSS; DESTRUCTION; OR DAMAGE.\n\n         Borrower will bear the risk of the Collateral being lost, stolen,\ndestroyed, or damaged. If any item of Collateral is lost, stolen, destroyed, or\ndamaged, then Borrower will pay Bank an amount equal to the sum of (i) all\naccrued and unpaid Scheduled Payments due prior to the next such Payment Date\nand (ii) a prepayment in an amount equal to the Stipulated Loan Value as to such\nCollateral. If during the term of this Agreement any item of Financed Equipment\nis lost, stolen, destroyed, damaged beyond repair, rendered permanently unfit\nfor use, or seized by a governmental authority for any reason whatsoever for a\nperiod equal to at least the remainder of the term of this Agreement (an 'Event\nof Loss'), then in each case Bank will receive from the proceeds of insurance\nmaintained pursuant to Section 6, from any award paid by the seizing\ngovernmental authority or, to the extent not received from the proceeds of\ninsurance or award or both, from Borrower, on or before the Payment Date next\nsucceeding such Event of Loss for each such item of Financed Equipment subject\nto an Event of Loss, an amount equal to the sum of: (i) all accrued and unpaid\nScheduled Payments with respect to such Loan due prior to the next such Payment\nDate, (ii) a prepayment in an amount equal to the Stipulated Loss Value and\n(iii) all other sums, if any, that shall have become due and payable, including\ninterest at the Default Rate with respect to any past due amounts. On the date\nof receipt by Bank of the amount specified above with respect to each such item\nof Financed Equipment subject to an Event of Loss, this Agreement shall\nterminate as to such Financed Equipment. Any proceeds of insurance maintained by\nBorrower pursuant to this Section and received by Borrower will be paid to Bank,\npromptly upon their receipt by Borrower. If any proceeds of insurance or awards\nreceived from governmental authorities are in excess of the amount owed under\nthis Section, Bank shall promptly remit to Borrower the amount in excess of the\namount owed to Bank.\n\n7        NEGATIVE COVENANTS\n\n7.1      BORROWER WILL NOT DO ANY OF THE FOLLOWING:\n\n         Change its name or the chief executive office or principal place of\nbusiness, move or dispose of any interest in the Collateral, permit any lien or\nsecurity interest to attach to the Collateral, or enter into any transaction\noutside the ordinary course of Borrower's business.\n\n                                       9\n\n         Become an 'investment company' or a company controlled by an\n'investment company,' under the Investment Company Act of 1940 or undertake as\none of its important activities extending credit to purchase or carry margin\nstock, or use the proceeds of any Advance for that purpose; fail to meet the\nminimum funding requirements of ERISA, permit a Reportable Event or Prohibited\nTransaction, as defined in ERISA, to occur, fail to comply with the Federal Fair\nLabor Standards Act or violate any other law or regulation, if the violation\ncould have a material adverse effect on Borrower's business or operations or\ncause a Material Adverse Change, or permit any of its Subsidiaries to do so.\n\n8        EVENTS OF DEFAULT\n\n         Any one of the following is an Event of Default:\n\n8.1      PAYMENT DEFAULT.\n\n         Borrower fails to pay any of the Obligations when due;\n\n8.2      COVENANT DEFAULT.\n\n         If Borrower violates any covenant in Section 7 or does not perform or\nobserve any other material term, condition or covenant in this Agreement, any\nLoan Documents, or in any agreement between Borrower and Bank and as to any\ndefault under a term, condition or covenant that can be cured, has not cured the\ndefault within 10 days after it occurs, or if the default cannot be cured within\n10 days or cannot be cured after Borrower's attempts within 10 day period, and\nthe default may be cured within a reasonable time, then Borrower has an\nadditional period (of not more than 30 days) to attempt to cure the default.\nDuring the additional time, the failure to cure the default is not an Event of\nDefault (but no Credit Extensions will be made during the cure period);\n\n8.3      MATERIAL ADVERSE CHANGE.\n\n         If there (i) occurs a material adverse change in the business,\noperations, or condition (financial or otherwise) of the Borrower, or (ii) is a\nmaterial impairment of the prospect of repayment of any portion of the\nObligations.\n\n8.4      ATTACHMENT.\n\n         If any material portion of Borrower's assets is attached, seized,\nlevied on, or comes into possession of a trustee or receiver and the attachment,\nseizure or levy is not removed in 10 days, or if Borrower is enjoined,\nrestrained, or prevented by court order from conducting a material part of its\nbusiness or if a judgment or other claim becomes a Lien on a material portion of\nBorrower's assets, or if a notice of lien, levy, or assessment is filed against\nany of Borrower's assets by any government agency and not paid within 10 days\nafter Borrower receives notice. These are not Events of Default if stayed or if\na bond is posted pending contest by Borrower (but no Credit Extensions will be\nmade during the cure period);\n\n8.5      INSOLVENCY.\n\n         If Borrower becomes insolvent or if Borrower begins an Insolvency\nProceeding or an Insolvency Proceeding is begun against Borrower and not\ndismissed or stayed within 30 days (but no Credit Extensions will be made before\nany Insolvency Proceeding is dismissed);\n\n                                       10\n\n8.6      OTHER AGREEMENTS.\n\n         If there is a default in any agreement between Borrower and a third\nparty that gives the third party the right to accelerate any Indebtedness\nexceeding $100,000 or that could cause a Material Adverse Change;\n\n8.7      JUDGMENTS.\n\n         If a money judgment(s) in the aggregate of at least $50,000 is rendered\nagainst Borrower and is unsatisfied and unstayed for 10 days (but no Advances\nwill be made before the judgment is stayed or satisfied);or\n\n8.8      MISREPRESENTATIONS.\n\n         If Borrower or any Person acting for Borrower makes any material\nmisrepresentation or material misstatement now or later in any warranty or\nrepresentation in this Agreement or in any writing delivered to Bank or to\ninduce Bank to enter this Agreement or any Loan Document.\n\n9        BANK'S RIGHTS AND REMEDIES\n\n9.1      RIGHTS AND REMEDIES.\n\n         When an Event of Default occurs and continues Bank may, without notice\nor demand, do any or all of the following:\n\n         (a) Declare all Obligations immediately due and payable (but if an\nEvent of Default described in Section 8.5 occurs all Obligations are immediately\ndue and payable without any action by Bank);\n\n         (b) Stop advancing money or extending credit for Borrower's benefit\nunder this Agreement or under any other agreement between Borrower and Bank;\n\n         (c) Make any payments and do any acts it considers necessary or\nreasonable to protect its security interest in the Collateral. Borrower will\nassemble the Collateral if Bank requires and make it available as Bank\ndesignates. Bank may enter premises where the Collateral is located, take and\nmaintain possession of any part of the Collateral, and pay, purchase, contest,\nor compromise any Lien which appears to be prior or superior to its security\ninterest and pay all expenses incurred. Borrower grants Bank a license to enter\nand occupy any of its premises, without charge, to exercise any of Bank's rights\nor remedies;\n\n         (d) Apply to the Obligations any (i) balances and deposits of Borrower\nit holds, or (ii) any amount held by Bank owing to or for the credit or the\naccount of Borrower;\n\n         (e) Ship, reclaim, recover, store, finish, maintain, repair, prepare\nfor sale, advertise for sale, and sell the Collateral; and\n\n         (f) Dispose of the Collateral according to the Code.\n\n9.2      POWER OF ATTORNEY.\n\n         Effective only when an Event of Default occurs and continues, Borrower\nirrevocably appoints Bank as its lawful attorney to: (i) transfer the Collateral\ninto the name of Bank or a third party as the Code permits. Bank may exercise\nthe power of attorney to sign Borrower's name on any documents necessary to\nperfect or continue the perfection of any security interest regardless of\nwhether an Event of Default has occurred. Bank's appointment as Borrower's\nattorney in fact, and all of Bank's rights and powers, coupled\n\n\n                                       11\n\nwith an interest, are irrevocable until all Obligations have been fully repaid\nand performed and Bank's obligation to provide Credit Extensions terminates.\n\n9.3      BANK EXPENSES.\n\n         If Borrower fails to pay any amount or furnish any required proof of\npayment to third persons Bank may make all or part of the payment or obtain\ninsurance policies required in Section 6.4, and take any action under the\npolicies Bank deems prudent Any amounts paid by Bank are Bank Expenses and\nimmediately due and payable, bearing interest at the then applicable rate and\nsecured by the Collateral. No payments by Bank are deemed an agreement to make\nsimilar payments in the future or Bank's waiver of any Event of Default.\n\n9.4      BANK'S LIABILITY FOR COLLATERAL.\n\n         If Bank complies with reasonable banking practices it is not liable for\n(a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral;\n(c) any diminution in the value of the Collateral; or (d) any act or default of\nany carrier, warehouseman, bailee, or other person. Borrower bears all risk of\nloss, damage or destruction of the Collateral.\n\n9.5      REMEDIES CUMULATIVE.\n\n         Bank's rights and remedies under this Agreement, the Loan Documents,\nand all other agreements are cumulative. Bank has all rights and remedies\nprovided under the Code, by law, or in equity. Bank's exercise of one right or\nremedy is not an election, and Bank's waiver of any Event of Default is not a\ncontinuing waiver. Bank's delay is not a waiver, election, or acquiescence. No\nwaiver is effective unless signed by Bank and then is only effective for the\nspecific instance and purpose for which it was given.\n\n9.6      DEMAND WAIVER.\n\n         Borrower waives demand, notice of default or dishonor, notice of\npayment and nonpayment, notice of any default, nonpayment at maturity, release,\ncompromise, settlement, extension, or renewal of accounts, documents,\ninstruments, chattel paper, and guarantees held by Bank on, which Borrower is\nliable.\n\n10       NOTICES\n\n         All notices or demands by any party about this Agreement or any other\nrelated agreement must be in writing and be personally delivered or sent by an\novernight delivery service, by certified mail, postage prepaid, return receipt\nrequested, or by telefacsimile to the addresses set forth at the beginning of\nthis Agreement. A Party may change its notice address by giving the other Party\nwritten notice.\n\n11       CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER\n\n         THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,\nTHE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO\nPRINCIPLES OF CONFLICTS OF LAW. EACH OF BORROWER AND BANK HEREBY SUBMITS TO THE\nEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE\nCOMMONWEALTH OF MASSACHUSETTS, BUT IF FOR ANY REASON THE BANK IS DENIED ACCESS\nTO SUCH COURTS, THEN THE VENUE WILL BE IN THE STATE AND FEDERAL COURTS LOCATED\nIN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA.\n\n         BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY\nTRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE\nLOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING\n\n\n                                       12\n\nCONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR\nSTATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER\nCONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH\nPARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL\nCOUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS\nFOLLOWING CONSULTATION WITH LEGAL COUNSEL.\n\n12       GENERAL PROVISIONS\n\n12.1     SUCCESSORS AND ASSIGNS.\n\n         This Agreement binds and is for the benefit of the successors and\npermitted assigns of each party. Borrower may not assign this Agreement or any\nrights under it without Bank's prior written consent which may be granted or\nwithheld in Bank's discretion. Bank has the right, without the consent of or\nnotice to Borrower, to sell, transfer, negotiate, or grant participation in all\nor any part of, or any interest in, Bank's obligations, rights and benefits\nunder this Agreement.\n\n12.2     INDEMNIFICATION.\n\n         Borrower will indemnify, defend and hold harmless Bank and its\nofficers, employees, and agents against: (a) all obligations, demands, claims,\nand liabilities asserted by any other party in connection with the transactions\ncontemplated by the Loan Documents; and (b) all losses or Bank Expenses\nincurred, or paid by Bank from, following, or consequential to transactions\nbetween Bank and Borrower (including reasonable attorneys fees and expenses),\nexcept for losses caused by Bank's gross negligence or willful misconduct.\n\n12.3     TIME OF ESSENCE.\n\n         Time is of the essence for the performance of all obligations in this\nAgreement.\n\n12.4     SEVERABILITY OF PROVISION.\n\n         Each provision of this Agreement is severable from every other\nprovision in determining the enforceability of any provision.\n\n12.5     AMENDMENTS IN WRITING, INTEGRATION.\n\n         All amendments to this Agreement must be in writing and signed by\nBorrower and Bank. This Agreement represents the entire agreement about this\nsubject matter, and supersedes prior negotiations or agreements. All prior\nagreements, understandings, representations, warranties, and negotiations\nbetween the parties about the subject matter of this Agreement merge into this\nAgreement and the Loan Documents.\n\n12.6     COUNTERPARTS.\n\n         This Agreement may be executed in any number of counterparts and by\ndifferent parties on separate counterparts, each of which, when executed and\ndelivered, are an original, and all taken together, constitute one Agreement.\n\n12.7     SURVIVAL.\n\n         All covenants, representations and warranties made in this Agreement\ncontinue in full force while any Obligations remain outstanding. The obligations\nof Borrower in Section 12.2 to indemnify Bank will survive until all statutes of\nlimitations for actions that may be brought against Bank have run.\n\n                                       13\n\n12.8     CONFIDENTIALITY.\n\n         In handling any confidential information, Bank will exercise the same\ndegree of care that it exercises for its own proprietary information, but\ndisclosure of information may be made (i) to Bank's subsidiaries or affiliates\nin connection with their business with Borrower, (ii) to prospective transferees\nor purchasers of any interest in the Loans, (iii) as required by law,\nregulation, subpoena, or other order, (iv) as required in connection with Bank's\nexamination or audit and (v) as Bank considers appropriate exercising remedies\nunder this Agreement. Confidential information does not include information that\neither: (a) is in the public domain or in Bank's possession when disclosed to\nBank, or becomes part of the public domain after disclosure to Bank; or (b) is\ndisclosed to Bank by a third party, if Bank does not know that the third party\nis prohibited from disclosing the information.\n\n12.9     COUNTERSIGNATURE.\n\n         This Agreement shall become effective only when it shall have been\nexecuted by Borrower and Bank (provided, however, in no event shall this\nAgreement become effective until signed by an officer of Bank in California).\n\n12.10    ATTORNEYS' FEES, COSTS AND EXPENSES.\n\n         In any action or proceeding between Borrower and Bank arising out of\nthe Loan Documents, the prevailing party will be entitled to recover its\nreasonable attorneys' fees and other costs and expenses incurred, in addition to\nany other relief to which it may be entitled.\n\n13       DEFINITIONS\n\n13.1     DEFINITIONS.\n\n         In this Agreement:\n\n         'ACCOUNTS' are all existing and later arising accounts, contract\nrights, and other obligations owed Borrower in connection with its sale or lease\nof goods (including licensing software and other technology) or provision of\nservices, all credit insurance, guaranties, other security and all merchandise\nreturned or reclaimed by Borrower and Borrower's Books relating to any of the\nforegoing.\n\n         'AFFILIATE' of a Person is a Person that owns or controls directly or\nindirectly the Person, any Person that controls or is controlled by or is under\ncommon control with the Person, and each of that Person's senior executive\nofficers, directors, partners and, for any Person that is a limited liability\ncompany, that Person's managers and members.\n\n         'BANK EXPENSES' are all audit fees and expenses and reasonable costs or\nexpenses (including reasonable attorneys' fees and expenses) for preparing,\nnegotiating, administering, defending and enforcing the Loan Documents\n(including appeals or Insolvency Proceedings).\n\n         'BORROWER'S BOOKS' are all Borrower's books and records including\nledgers, records regarding Borrower's assets or liabilities, the Collateral,\nbusiness operations or financial condition and all computer programs or discs or\nany equipment containing the information.\n\n         'BUSINESS DAY' is any day that is not a Saturday, Sunday or a day on\nwhich the Bank is closed.\n\n         'CLOSING DATE' is the date of this Agreement.\n\n         'CODE' is the Massachusetts Uniform Commercial Code.\n\n                                       14\n\n         'COLLATERAL' is the property described on Exhibit A.\n\n         'COMMITMENT TERMINATION DATE' is January 27, 2000.\n\n         'COMMITTED EQUIPMENT LINE' is a Credit Extension of up to $1,500,000.\n\n         'CONTINGENT OBLIGATION' is, for any Person, any direct or indirect\nliability, contingent or not, of that Person for (i) any indebtedness, lease,\ndividend, letter of credit or other obligation of another such as an obligation\ndirectly or indirectly guaranteed, endorsed, co-made, discounted or sold with\nrecourse by that Person, or for which that Person is directly or indirectly\nliable; (ii) any obligations for undrawn letters of credit for the account of\nthat Person; and (iii) all obligations from any interest rate, currency or\ncommodity swap agreement, interest rate cap or collar agreement, or other\nagreement or arrangement designated to protect a Person against fluctuation in\ninterest rates, currency exchange rates or commodity prices; but 'Contingent\nObligation' does not include endorsements in the ordinary course of business.\nThe amount of a Contingent Obligation is the stated or determined amount of the\nprimary obligation for which the Contingent Obligation is made or, if not\ndeterminable, the maximum reasonably anticipated liability for it determined by\nthe Person in good faith; but the amount may not exceed the maximum of the\nobligations under the guarantee or other support arrangement.\n\n         'CREDIT EXTENSION' is each Equipment Advance or any other extension of\ncredit by Bank for Borrower's benefit.\n\n         'EQUIPMENT ADVANCE' or 'EQUIPMENT ADVANCES' is a loan advance (or\nadvances) under the Committed Equipment Line.\n\n         'ELIGIBLE EQUIPMENT' is general purpose computer equipment, office\nequipment, test and laboratory equipment, furnishings, and, subject to the\nlimitations set forth below, Other Equipment that complies with all of\nBorrower's representations and warranties to Bank and which is acceptable to\nBank in all respects. Unless otherwise agreed to by Bank: not more than 25% of\nthe Equipment financed with the proceeds of each Equipment Advance shall consist\nof Other Equipment. All Equipment financed with the proceeds of Equipment\nAdvances shall be new and purchased within 120 days from the date of the\nEquipment Advance. Equipment to be located outside of the United States shall be\nlimited to a maximum of $150,000.\n\n         'EQUIPMENT' is all present and future machinery, equipment, tenant\nimprovements, furniture, fixtures, vehicles, tools, parts and attachments in\nwhich Borrower has any interest.\n\n         'EQUIPMENT ADVANCE' is defined in Section 2.1.1.\n\n         'EQUIPMENT AVAILABILITY END DATE' is defined in Section 2.1.1.\n\n         'EQUIPMENT MATURITY DATE' is defined in Section 2.1.1.\n\n         'ERISA' is the Employment Retirement Income Security Act of 1974,\nand its regulations.\n\n         'FINAL PAYMENT PERCENTAGE' is defined in Section 2.2 (d).\n\n         'FINANCED EQUIPMENT' is defined in the Loan Supplement.\n\n         'FUNDING DATE' is any date on which an Equipment Advance is made to\nor on account of Borrower.\n\n         'GAAP' is generally accepted accounting principles.\n\n                                       15\n\n         'INDEBTEDNESS' is (a) indebtedness for borrowed money or the deferred\nprice of property or services, such as reimbursement and other obligations for\nsurety bonds and letters of credit (b) obligations evidenced by notes, bonds,\ndebentures or similar instruments, (c) capital lease obligations and (d)\nContingent Obligations.\n\n         'INSOLVENCY PROCEEDING' are proceedings by or against any Person under\nthe United States Bankruptcy Code, or any other bankruptcy or insolvency law,\nincluding assignments for the benefit of creditors, compositions, extensions\ngenerally with its creditors, or proceedings seeking reorganization,\narrangement, or other relief.\n\n         'INVESTMENT' is any beneficial ownership of (including stock,\npartnership interest or other securities) any Person, or any loan, advance or\ncapital contribution to any Person.\n\n         'LIEN' is a mortgage, lien, deed of trust, charge, pledge, security\ninterest or other encumbrance.\n\n         'LOAN DOCUMENTS' are, collectively, this Agreement, any note, or notes\nor guaranties executed by Borrower or Guarantor, and any other present or future\nagreement between Borrower and\/or for the benefit of Bank in connection with\nthis Agreement, all as amended, extended or restated.\n\n         'LOAN FACTOR' is the amount set forth as a percentage in the Loan\nSupplement calculated using the Basic Rate.\n\n         'LOAN SUPPLEMENT' is attached as Exhibit C.\n\n         'MATERIAL ADVERSE CHANGE' is defined in Section 8.3.\n\n         'OBLIGATIONS' are debts, principal, interest, Bank Expenses and other\namounts Borrower owes Bank now or later, including letters of credit and\nexchange contracts and including interest accruing after Insolvency Proceedings\nbegin and debts, liabilities, or obligations of Borrower assigned to Bank.\n\n         'ORIGINAL STATED COST' is defined in Section 2.2 (d).\n\n         'OTHER EQUIPMENT' is leasehold improvements, intangible property such\nas computer software and software licenses, equipment specifically designed or\nmanufactured for Borrower, other intangible property, limited use property and\nother similar property and soft costs, including sales tax, freight and\ninstallation expenses.\n\n         'PERSON' is any individual, sole proprietorship, partnership, limited\nliability company, joint venture, company association, trust, unincorporated\norganization, association, corporation, institution, public benefit corporation,\nfirm, joint stock company, estate, entity or government agency.\n\n         'PRIME RATE' is Bank's most recently announced 'prime rate,' even if it\nis not Bank's lowest rate.\n\n         'RESPONSIBLE OFFICER' is each of the Chief Executive Officer, the\nPresident, the Chief Financial Officer and the Controller of Borrower.\n\n         'SCHEDULE' is any attached schedule of exceptions.\n\n         'STATED COST' is (i) with respect to new equipment, the original cost\nto Borrower of the item of new equipment net of any and all freight,\ninstallation, tax and other soft costs or (ii) with respect to used equipment,\nthe net book value assigned to such item of used equipment by Bank, after\nconsultation with Borrower, at the time of the making of the equipment Advance\nsuch item of used equipment.\n\n                                       16\n\n         'STIPULATED LOSS VALUE' is the percentage set forth with respect to\neach Equipment Advance in the Loan Supplement, determined as of the Payment Date\non which payment of such amount is to be made, or if such date is not a Payment\nDate, on the Payment Date immediately succeeding such date multiplied by the\nLoan Amount.\n\n         'SUBORDINATED DEBT' is debt incurred by Borrower subordinated to\nBorrowers debt to Bank (and identified as subordinated by Borrower and Bank).\n\n         'SUBSIDIARY' is for any Person, or any other business entity of which\nmore than 50% of the voting stock or other equity interests is owned or\ncontrolled, directly or indirectly, by the Person or one or more Affiliates of\nthe Person.\n\nBORROWER:\n\nAkamai Technologies, Inc.\n\nBy:  \/s\/ Paul Sagan\n   -----------------------------\nTitle:   VP and COO\n      ---------------------------\n\nBANK:\n\nSILICON VALLEY BANK, doing business as SILICON VALLEY EAST\n\nBy:  \/s\/ Nancy E. Funkhouser\n   -----------------------------\nTitle:   Assistant Vice President\n      ---------------------------\n\nSILICON VALLEY BANK\n\nBy:  \/s\/ [illegible]\n   -----------------------------\nTitle:   AVP\n      ---------------------------\nexecuted in Santa Clara County, California\n\n\n\n                                       17\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6606,8832],"corporate_contracts_industries":[9415],"corporate_contracts_types":[9560,9567],"class_list":["post-41133","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-akamai-technologies-inc","corporate_contracts_companies-silicon-valley-bancshares","corporate_contracts_industries-financial__banks","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41133","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41133"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41133"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41133"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41133"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}