THIRD Amendment to Loan and security agreement
Exhibit 10.19.3
THIRD Amendment
to
Loan and security agreement
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into this 31st day of December, 2020, by and between SILICON VALLEY BANK, a California corporation (“Bank”), and IRIDEX CORPORATION, a Delaware corporation (“Borrower”).
Recitals
A.Bank and Borrower have entered into that certain Loan and Security Agreement dated as of November 2, 2016 (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) 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.
2.1Section 2.6 (Fees). Section 2.6 of the Loan Agreement is amended by adding the following after clause (f) as clause (g):
(g)Anniversary Fee. A fully earned, non-refundable anniversary fee of Five Thousand Dollars ($5,000) due on the earlier of (a) January 1, 2022 or (b) termination of the Revolving Line for any reason prior to the Revolving Line Maturity Date.
2.2Section 6.8 (Operating Accounts). Section 6.8 of the Loan Agreement is hereby amended by deleting clause (a) thereof in its entirety and replacing it with the following:
(a)Borrower, any Subsidiary of Borrower and any Guarantor shall maintain all of its operating accounts and excess cash with Bank or Bank’s Affiliates.
Borrower, any Subsidiary of Borrower and any Guarantor shall obtain any business credit card exclusively from Bank.
2.3Section 13 (Definitions). The definition of “Revolving Line Maturity Date” as set forth in Section 13.1 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“Revolving Line Maturity Date” is April 1, 2022.
3.Limitation of Amendments.
3.1The 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 (a) 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.
3.2This 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:
4.1Immediately 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 (a) no Event of Default has occurred and is continuing;
4.2Borrower 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;
4.3The 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;
4.4The 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;
4.5The 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, (a) any contractual restriction with a Person binding on Borrower, (a) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (a) the organizational documents of Borrower;
2
4.6The 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 Borrower, except as already has been obtained or made; and
4.7This 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.
5.Ratification of Perfection Certificate. Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate dated as of the Effective Date, and acknowledges, confirms and agrees that the disclosures and information Borrower provided to Bank in such Perfection Certificate have not changed, as of the date hereof.
6.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.
7.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.
8.Effectiveness. This Amendment shall be deemed effective upon (a) the due execution and delivery to Bank of this Amendment by each party hereto, and (a) Borrower’s payment of (i) a fully-earned, non-refundable commitment fee in an amount equal to Twenty Thousand Dollars ($20,000), and (i) Bank’s legal fees and expenses incurred in connection with the negotiation and preparation of this Amendment.
[Signature page follows.]
3
In Witness Whereof, 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/ Xxxxxxx Xxxxxx |
|
|
Name: |
|
Xxxxxxx Xxxxxx |
|
|
Title: |
|
Vice President |
|
|
BORROWER |
|
||
|
|
|
|
|
|
IRIDEX CORPORATION |
|
||
|
|
|
|
|
|
By: |
|
/s/ Xxxxx X. Xxxxx |
|
|
Name: |
|
Xxxxx X. Xxxxx |
|
|
Title: |
|
President and Chief Executive Officer |
|
