FIFTHLOAN MODIFICATION AGREEMENT

EXHIBIT 10.7

 

 

This Fifth Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of July 12, 2010, by and among (a) SILICON VALLEY BANK, a California corporation, with its principal place of business at 3003 Tasman Drive, Santa Clara, California 95054 and with a loan production office located at One Newton Executive Park, Suite 200, 2221 Washington Street, Newton, Massachusetts 02462 (“Bank”) and (b) (i) GLOBALOPTIONS, INC., a Delaware corporation with offices at 1501 M Street, N.W., Washington, D.C. 20005 (“Global”), and (ii) THE BODE TECHNOLOGY GROUP, INC., a Delaware corporation with offices at 1501 M Street, N.W., Washington, D.C. 20005 (“Bode”) (Global and Bode are jointly and severally, individually and collectively, referred to herein as the “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 March 31, 2008, evidenced by, among other documents, a certain Fourth Amended and Restated Loan and Security Agreement dated as of March 31, 2008, among Borrower and Bank, as amended by a certain First Loan Modification Agreement dated as of March 30, 2009, as further amended by a certain Second Loan Modification Agreement dated as of August 27, 2009, as further amended by a certain Third Loan Modification Agreement dated as of December 31, 2009, and as further amended by a certain Fourth Loan Modification Agreement dated as of April 15, 2010 (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 (a) the Collateral as described in the Loan Agreement, (b) the Intellectual Property Collateral as described in a certain Intellectual Property Security Agreement dated as of March 31, 2008 between Bank and Global (the “Global IP Security Agreement”), and (c) the Intellectual Property Collateral as described in a certain Intellectual Property Security Agreement dated as of March 31, 2008 between Bank and Bode (the “Bode IP Security 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

Borrower hereby acknowledges, confirms and agrees that, upon and after the occurrence of the Sale Event, no further Advances based upon Aggregate Eligible Accounts may be requested by Borrower and that Bank has no obligation to make any Advances based upon Aggregate Eligible Accounts as of such date.  In addition, the outstanding principal amount of the Advances made based upon Aggregate Eligible Accounts must be repaid in full or, at the sole and absolute discretion of Bank, refinanced as Advances based upon Eligible Accounts, and all other Obligations with respect to Advances made based upon Aggregate Eligible Accounts (including, without limitation, all Finance Charges, Collateral Handling Fees, and other fees or amounts due in connection with the Advances made based upon Aggregate Eligible Accounts) shall be immediately paid in full.

 

2

The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.1.1(a) thereof:

 

“             (ii)            Subject to the terms of this Agreement, Borrower may request that Bank finance Eligible Accounts on an aggregate basis.  Bank may, in its sole discretion in each instance, finance Eligible Accounts on an aggregate basis by extending credit to Borrower in an amount equal to the result of the Advance Rate multiplied by the aggregate face amount of a summary listing of Eligible Accounts provided to Bank for one Account Debtor (the “Aggregate Eligible Accounts”).  Bank may, in its sole discretion, change the percentage of the Advance Rate for the Aggregate Eligible Accounts on a case by case basis.

 

(iii)          Any extension of credit made pursuant to the terms of subsection (i) or (ii) above shall hereinafter be referred to as an “Advance”.  When Bank makes an Advance, the Eligible Account or the Aggregate Eligible Accounts each become a separate “Financed Receivable”.

 

and inserting in lieu thereof the following:

 

“             (ii)           Subject to the terms of this Agreement and prior to the occurrence of the Sale Event, Borrower may request that Bank finance Eligible Accounts on an aggregate basis.  Bank may, in its sole discretion in each instance, finance Eligible Accounts on an aggregate basis by extending credit to Borrower in an amount equal to the result of the Advance Rate multiplied by the aggregate face amount of a summary listing of Eligible Accounts provided to Bank for one Account Debtor (the “Aggregate Eligible Accounts”).  Bank may, in its sole discretion, change the percentage of the Advance Rate for the Aggregate Eligible Accounts on a case by case basis.

 

(iii)           Any extension of credit made pursuant to the terms of subsection (i) or, prior to the occurrence of the Sale Event, subsection (ii), above shall hereinafter be referred to as an “Advance”.  When Bank makes an Advance, the Eligible Account or, prior to the occurrence of the Sale Event, the Aggregate Eligible Accounts, each become a separate “Financed Receivable”.”

 

3

The Loan Agreement shall be amended by deleting the following language, appearing in Section 2.1.1(b) thereof:

 

“In addition and notwithstanding the foregoing, (i) the aggregate amount of Advances outstanding at any time may not exceed Ten Million Dollars ($10,000,000.00), and (ii) the aggregate amount of Advances made based upon Aggregate Eligible Accounts outstanding at any time may not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00).”

 

and inserting in lieu thereof the following:

 

“In addition and notwithstanding the foregoing, (i) prior to the occurrence of the Sale Event, (A) the aggregate amount of Advances outstanding at any time may not exceed Ten Million Dollars ($10,000,000.00), and (B) the aggregate amount of Advances made based upon Aggregate Eligible Accounts outstanding at any time may not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00), and (ii) upon and after the occurrence of the Sale Event, the aggregate amount of Advances outstanding at any time may not exceed Seven Million Five Hundred Thousand Dollars ($7,500,000.00).”

 

4

The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.1.1 thereof:

 

“             (c)           Borrowing Procedure.  Borrower will deliver an Advance Request and Invoice Transmittal in the form attached hereto as Exhibit C signed by a Responsible Officer for each Advance it requests, accompanied by an accounts receivable aging with respect to Advances requested to be made based upon Aggregate Eligible Accounts, or by invoices with respect to Advances requested to be made based upon Eligible Accounts.  Bank may rely on information set forth in or provided with the Advance Request and Invoice Transmittal.”

 

and inserting in lieu thereof the following:

 

“             (c)           Borrowing Procedure.

 

(i)  Prior to the occurrence of the Sale Event, Borrower will deliver an Advance Request and Invoice Transmittal in the form attached hereto as Exhibit C signed by a Responsible Officer for each Advance it requests, accompanied by an accounts receivable aging with respect to Advances requested to be made based upon Aggregate Eligible Accounts, or by invoices with respect to Advances requested to be made based upon Eligible Accounts.  Bank may rely on information set forth in or provided with the Advance Request and Invoice Transmittal.

 

(ii)  Upon and after the occurrence of the Sale Event, Borrower will deliver an Invoice Transmittal for each Eligible Account it offers.  Bank may rely on information set forth in or provided with the Invoice Transmittal.”

 

5

The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.1.1(f):

 

“If this Agreement is terminated (A) by Bank in accordance with clause (ii) in the foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay to Bank a termination fee in an amount equal to Fifty Thousand Dollars ($50,000.00) (the “Early Termination Fee”).”

 

and inserting in lieu thereof the following:

 

“If this Agreement is terminated (A) by Bank in accordance with clause (ii) in the foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay to Bank a termination fee in an amount equal to (1) prior to the occurrence of the Sale Event, Fifty Thousand Dollars ($50,000.00), and (2) upon and after the occurrence of the Sale Event, Thirty Seven Thousand Five Hundred Dollars ($37,500.00) (the “Early Termination Fee”).”

 

6

The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.1.1 thereof:

 

“             (h)           Suspension of Advances.  Without limiting the fact that Bank has no obligation to make Advances based upon Aggregate Eligible Accounts, Borrower’s ability to request that Bank finance Eligible Accounts hereunder will terminate if, in Bank’s sole discretion, there has been a material adverse change in the general affairs, management, results of operation, condition (financial or otherwise) or the prospect of repayment of the Obligations, or there has been any material adverse deviation by Borrower from the most recent business plan of Borrower presented to and accepted by Bank prior to the execution of this Agreement.”

 

and inserting in lieu thereof the following:

 

“             (h)           Suspension of Advances.   Without limiting the fact that (i) Bank has no obligation to make Advances based upon Aggregate Eligible Accounts prior to the occurrence of the Sale Event, and (ii) Bank shall not make any Advances based upon Aggregate Eligible Accounts upon and after the occurrence of the Sale Event, Borrower’s ability to request that Bank finance Eligible Accounts hereunder will terminate if, in Bank’s sole discretion, there has been a material adverse change in the general affairs, management, results of operation, condition (financial or otherwise) or the prospect of repayment of the Obligations, or there has been any material adverse deviation by Borrower from the most recent business plan of Borrower presented to and accepted by Bank prior to the execution of this Agreement.”

 

7

The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.2.3 thereof:

 

“Except as otherwise provided in Section 2.3.1(b)(i), the Finance Charge is payable when the Advance made based on such Financed Receivable is payable in accordance with Section 2.3 hereof.”

 

and inserting in lieu thereof the following:

 

“Except as otherwise provided in Section 2.3.1(b)(i) prior to the occurrence of the Sale Event, and at all times upon and after the occurrence of the Sale Event, the Finance Charge is payable when the Advance made based on such Financed Receivable is payable in accordance with Section 2.3 hereof.”

 

8

The Loan Agreement shall be amended by deleting the following, appearing as Section 2.2.4 thereof:

 

“             2.2.4      Collateral Handling Fee.  Borrower will pay to Bank a collateral handling fee equal to 0.20% (or, with respect to Financed Receivables based upon Aggregate Eligible Accounts, 0.30%) per month of the Financed Receivable Balance for each Financed Receivable outstanding based upon a 360 day year (the “Collateral Handling Fee”), provided, however, for any Subject Month (as of the first calendar day of such month) to the extent that Borrower maintained Liquidity of greater than Twelve Million Five Hundred Thousand Dollars ($12,500,000.00) at all times during the applicable Testing Month, the Collateral Handling Fee shall be 0.0% (or, with respect to Financed Receivables based upon Aggregate Eligible Accounts, 0.10%) per month of the Financed Receivable Balance for each Financed Receivable outstanding based upon a 360 day year.  This fee is charged on a daily basis which is equal to the Collateral Handling Fee divided by 30, multiplied by the number of days each such Financed Receivable is outstanding, multiplied by the outstanding Financed Receivable Balance.  Except as otherwise provided in Section 2.3.1(b)(i), the Collateral Handling Fee is payable when the Advance made based on such Financed Receivable is payable in accordance with Section 2.3 hereof.  In computing Collateral Handling Fees under this Agreement, all Collections received by Bank shall be deemed applied by Bank on account of Obligations three (3) Business Days after receipt of the Collections.  After an Event of Default, the Collateral Handling Fee will increase an additional 0.50% effective immediately upon such Event of Default; provided, however, as of the first day of the month following the month in which the applicable Event of Default is cured (so long as at such time there is no other Event of Default), the Collateral Handling Fee shall be reduced to the applicable rate as set forth in the first sentence of this Section 2.2.4.”

 

and inserting in lieu thereof the following:

 

“             2.2.4      Collateral Handling Fee.

 

(a)           Prior to the occurrence of the Sale Event, Borrower will pay to Bank a collateral handling fee equal to 0.20% (or, with respect to Financed Receivables based upon Aggregate Eligible Accounts, 0.30%) per month of the Financed Receivable Balance for each Financed Receivable outstanding based upon a 360 day year (the “Collateral Handling Fee”), provided, however, for any Subject Month (as of the first calendar day of such month) to the extent that Borrower maintained Liquidity of greater than Twelve Million Five Hundred Thousand Dollars ($12,500,000.00) at all times during the applicable Testing Month, the Collateral Handling Fee shall be 0.0% (or, with respect to Financed Receivables based upon Aggregate Eligible Accounts, 0.10%) per month of the Financed Receivable Balance for each Financed Receivable outstanding based upon a 360 day year.  This fee is charged on a daily basis which is equal to the Collateral Handling Fee divided by 30, multiplied by the number of days each such Financed Receivable is outstanding, multiplied by the outstanding Financed Receivable Balance.  Except as otherwise provided in Section 2.3.1(b)(i), the Collateral Handling Fee is payable when the Advance made based on such Financed Receivable is payable in accordance with Section 2.3 hereof.

 

(b)           Upon and after the occurrence of the Sale Event, Borrower will pay to Bank a collateral handling fee equal to 0.20% per month of the Financed Receivable Balance for each Financed Receivable outstanding based upon a 360 day year (the “Collateral Handling Fee”), provided, however, for any Subject Month (as of the first calendar day of such month) to the extent that Borrower maintained Liquidity of greater than Twelve Million Five Hundred Thousand Dollars ($12,500,000.00) at all times during the applicable Testing Month, the Collateral Handling Fee shall be 0.0% per month of the Financed Receivable Balance for each Financed Receivable outstanding based upon a 360 day year.  This fee is charged on a daily basis which is equal to the Collateral Handling Fee divided by 30, multiplied by the number of days each such Financed Receivable is outstanding, multiplied by the outstanding Financed Receivable Balance.  The Collateral Handling Fee is payable when the Advance made based on such Financed Receivable is payable in accordance with Section 2.3 hereof.

 

(c)           In computing Collateral Handling Fees under this Agreement, all Collections received by Bank shall be deemed applied by Bank on account of Obligations three (3) Business Days after receipt of the Collections.  After an Event of Default, the Collateral Handling Fee will increase an additional 0.50% effective immediately upon such Event of Default; provided, however, as of the first day of the month following the month in which the applicable Event of Default is cured (so long as at such time there is no other Event of Default), the Collateral Handling Fee shall be reduced to the applicable rate as set forth in the first sentence of subsection (i) or, prior to the occurrence of the Sale Event, subsection (ii) (as applicable) of this Section 2.2.4.”

 

9

The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.3.1 thereof:

 

“             (b)          With respect to Advances made based on Aggregate Eligible Accounts:

 

 

 

(iii)           In addition to the foregoing, Borrower hereby authorizes Bank to, at Bank’s election in its sole discretion, refinance each outstanding Advance which is made based upon Aggregate Eligible Accounts at any time, including, without limitation, when a portion of the Advance is repaid or when Bank makes an additional Advance pertaining to Aggregate Eligible Accounts in respect of the same Account Debtor.  Each such refinancing shall consist of the creation of a new “placeholder note” on the books of Bank which evidences the Financed Receivable Balance with respect to such Advance.”

 

and inserting in lieu thereof the following:

 

“             (b)          With respect to Advances made based on Aggregate Eligible Accounts:

 

 

 

(iii)           In addition to the foregoing, prior to the occurrence of the Sale Event, Borrower hereby authorizes Bank to, at Bank’s election in its sole discretion, refinance each outstanding Advance which is made based upon Aggregate Eligible Accounts at any time, including, without limitation, when a portion of the Advance is repaid or when Bank makes an additional Advance pertaining to Aggregate Eligible Accounts in respect of the same Account Debtor.  Each such refinancing shall consist of the creation of a new “placeholder note” on the books of Bank which evidences the Financed Receivable Balance with respect to such Advance.”

 

10

The Loan Agreement shall be amended by deleting the following, appearing as Section 6.7:

 

“             6.7          Financial Covenants.  Borrower shall maintain at all times, to be tested as of the last day of each month, unless otherwise noted:

 

(a)           EBDA.  EBDA for the three-month period ending on the last day of each month of at least:

 

and inserting in lieu thereof the following:

 

“             6.7          Financial Covenants.  Borrower shall maintain at all times, to be tested as of the last day of each month:

 

(a)           EBDA.  EBDA for the three-month period ending on the last day of each month of at least:

 

11

The Loan Agreement shall be amended by inserting the following new definitions, appearing alphabetically in Section 13.1 thereof:

 

“           “Sale Event” means the sale of any assets owned by Global and/or Guarantor with respect to their fraud and special investigations unit pursuant to that certain Asset Purchase Agreement dated as of June 11, 2010 by and among Borrower, Guarantor and GlobalOptions Services, Inc.”

 

“           “Invoice Transmittal” shows Eligible Accounts which Bank may finance and, for each such Account, includes the Account Debtor’s, name, address, invoice amount, invoice date and invoice number.”

 

12

The Loan Agreement shall be amended by deleting the following definitions, appearing in Section 13.1 thereof:

 

“           “Collections” are (a) all funds received by Bank from or on behalf of an Account Debtor for Financed Receivables, and (b) any refinancing by Bank, to be completed at Bank’s discretion pursuant to Section 2.3.1(b)(iii), of any Advance (or portion thereof) which is based upon Aggregate Eligible Accounts.”

 

“           “EBDA” means (a) Net Income, plus (b) to the extent deducted in the calculation of Net Income, depreciation expense, amortization expense, non-cash impairment charges and non-cash stock compensation expenses.”

 

“           “Facility Amount” is Twelve Million Five Hundred Thousand Dollars ($12,500,000.00).”

 

“           “Financed Receivables” are all those Eligible Accounts and Aggregate Eligible Accounts, including their proceeds which Bank finances and makes an Advance, as set forth in Section 2.1.1.  A Financed Receivable stops being a Financed Receivable (but remains Collateral) when the Advance made for the Financed Receivable has been fully paid.”

 

and inserting in lieu thereof the following:

 

“           “Collections” are (a) all funds received by Bank from or on behalf of an Account Debtor for Financed Receivables, and (b) prior to the occurrence of the Sale Event, any refinancing by Bank, to be completed at Bank’s discretion pursuant to Section 2.3.1(b)(iii), of any Advance (or portion thereof) which is based upon Aggregate Eligible Accounts.”

 

“           “EBDA” means (a) Net Income, plus (b) to the extent deducted in the calculation of Net Income, depreciation expense, amortization expense, non-cash impairment charges and non-cash stock compensation expenses, plus (c) gains and/or losses related to the sale of certain divisions and/or Subsidiaries of Borrower consented to by Bank in writing on a case-by-case basis in Bank’s sole discretion.”

 

“           “Facility Amount” is (a) prior to the occurrence of the Sale Event, Twelve Million Five Hundred Thousand Dollars ($12,500,000.00), and (b) upon and after the occurrence of the Sale Event, Nine Million Three Hundred Seventy Five Thousand Dollars ($9,375,000.00).”

 

“           “Financed Receivables” are all those Eligible Accounts and, prior to the occurrence of the Sale Event, Aggregate Eligible Accounts, including their proceeds which Bank finances and makes an Advance, as set forth in Section 2.1.1.  A Financed Receivable stops being a Financed Receivable (but remains Collateral) when the Advance made for the Financed Receivable has been fully paid.”

 

13

Upon the occurrence of the Sale Event, the Loan Agreement shall be amended by deleting the “Advance Request and Invoice Transmittal” form attached as Exhibit C thereto, and all references in the Loan Agreement to “Advance Request and Invoice Transmittal” shall mean “Invoice Transmittal”.

 

B.

Waiver.  Bank hereby waives Borrower’s existing defaults (if any) under the Loan Agreement by virtue of Borrower’s failure to comply with the financial covenant set forth in Section 6.7(a) thereof (relative to the requirement that Borrower maintain certain EBDA) as of the months ended April 30, 2010, May 31, 2010 and June 30, 2010.  Bank’s waiver of Borrower’s compliance with such covenant shall apply only to the foregoing specific periods.

 

4.           FEES.  Borrower shall reimburse Bank for all legal fees and expenses incurred in connection with this amendment to the Existing Loan Documents.

 

5.           RATIFICATION OF IP SECURITY AGREEMENTS.

 

(a)           Global hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of the Global IP Security Agreement and acknowledges, confirms and agrees that the Global IP Security Agreement contains an accurate and complete listing of all Intellectual Property Collateral as defined therein.

 

(b)           Bode hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of the Bode IP Security Agreement and acknowledges, confirms and agrees that the Bode IP Security Agreement contains an accurate and complete listing of all Intellectual Property Collateral as defined therein.

 

6.           RATIFICATIONS OF PERFECTION CERTIFICATES.

 

(a)           Global hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate dated as of March 31, 2008 between Global and Bank, and acknowledges, confirms and agrees the disclosures and information Global provided to Bank in the Perfection Certificate have not changed, as of the date hereof.

 

(b)           Bode hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate dated as of March 31, 2008 between Bode and Bank, and acknowledges, confirms and agrees the disclosures and information Bode provided to Bank in the Perfection Certificate have not changed, as of the date hereof.

 

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

 

8.           RATIFICATION OF LOAN DOCUMENTS.  Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of all security or other collateral granted to the Bank, and confirms that the indebtedness secured thereby includes, without limitation, the Obligations.

 

9.           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.

 

10.           CONTINUING VALIDITY.  Borrower understands and agrees that in modifying the existing Obligations, Bank is relying upon Borrower’s representations, warranties, and agreements, as set forth in the Existing Loan Documents.  Except as expressly modified pursuant to this Loan Modification Agreement, the terms of the Existing Loan Documents remain unchanged and in full force and effect.  Bank’s agreement to modifications to the existing Obligations pursuant to this Loan Modification Agreement in no way shall obligate Bank to make any future modifications to the Obligations.  Nothing in this Loan Modification Agreement shall constitute a satisfaction of the Obligations.  It is the intention of Bank and Borrower to retain as liable parties all makers of Existing Loan Documents, unless the party is expressly released by Bank in writing.  No maker will be released by virtue of this Loan Modification Agreement.

 

11.           COUNTERSIGNATURE.  This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank.

 

 

This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above.

The undersigned, GLOBALOPTIONS GROUP, INC. (“Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 31, 2008, executed and delivered by Guarantor, pursuant to which Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, (b) a certain Security Agreement (the “Security Agreement”) dated as of March 31, 2008, between Guarantor and Bank, pursuant to which Guarantor granted Bank a continuing first priority security interest in the Collateral (as the term is defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement, and (c) a certain Intellectual Property Security Agreement (the “IP Agreement”) dated as of March 31, 2008, between Guarantor and Bank, pursuant to which Guarantor granted Bank a continuing first priority security interest in the Intellectual Property Collateral (as the term is defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the IP Agreement.  In addition, Guarantor acknowledges, confirms and agrees that the Guaranty, Security Agreement, and IP Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith.