SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT
TO
THIS SECOND AMENDMENT to Loan
and Security Agreement (this “Amendment”) is entered into this 4 day of
November, 2009, by and between SILICON VALLEY BANK (“Bank”)
and ENCISION INC. a
Colorado corporation (“Borrower”) whose address is 0000 Xxxxxxxxxx Xxx., Xxxxxxx
XX 00000.
RECITALS
A. Bank
and Borrower have entered into that certain Loan and Security Agreement dated as
of November 10, 2006, as amended by a Default Waiver and First Amendment, dated
September 3, 2008 (as the same may from time to time be 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) extend the
Revolving Line Maturity Date and (ii) 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 and in reliance
upon the representations and warranties set forth below.
Agreement
Now,
Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.
2. Amendments
to Loan Agreement.
2.1 Section
6.6 of the Loan Agreement is hereby amended, in part, to delete the dollar
amount “$750” and replace it with the dollar amount “$850” therein.
2.2 The
definition of Revolving Line Maturity Date in Section 13.1 of the Loan Agreement
is hereby deleted in its entirety and replaced with the following:
“Revolving Line Maturity Date”
is November 8, 2011.
2.3 In
addition to all other fees and Bank Expenses due and payable from time to time
under the Loan Agreement, Borrower will pay a facility fee of $10,000 on the
date of this Amendment and an additional $10,000 facility fee on November 9,
2010.
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. Representations and
Warranties. To induce Bank to enter into this Amendment,
Borrower hereby represents and warrants to Bank as follows:
4.1 Immediately
after giving effect to this Amendment (a) the representations and
warranties contained in the Loan Documents are true, accurate and complete in
all material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they are
true and correct as of such date), and (b) no Event of Default has occurred
and is continuing;
4.2 Borrower
has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this
Amendment;
4.3 The
organizational documents of Borrower delivered to Bank on the Effective Date
remain true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
4.4 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
4.5 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not and will not contravene (a) any law or regulation binding
on or affecting Borrower, (b) any contractual restriction with a Person
binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrower, or (d) the organizational documents of Borrower;
4.6 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
either Borrower, except as already has been obtained or made; and
4.7 This
Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
2
5. Counterparts. This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Effectiveness. This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto (b) the due execution and/or
delivery of the documents listed in the Closing Checklist delivered to Borrower
in connection with this Amendment and (b) Borrower’s payment of the $10,000
facility fee referenced in Section 2.4 above and all Bank Expenses in connection
herewith.
In Witness
Whereof, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date first written above.
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BANK:
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BORROWER:
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SILICON
VALLEY BANK
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By:
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/s/
Xxxxx Xxxxx
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By:
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/s/
Xxxx X. Xxxxxx
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Print
Name:
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Xxxxx
Xxxxx
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Print
Name:
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Xxxx
X. Xxxxxx
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Title:
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Relationship
Manager
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Title:
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President/CEO
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