FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT
TO
AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
This
First Amendment to Amended and Restated Loan and Security Agreement (this “Amendment”) is
entered into this 26th day
of January 2010, by and between Silicon Valley Bank (“Bank”) and Betawave
Corporation, a Delaware corporation (“Borrower”) whose
address is 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000.
Recitals
A. Bank
and Borrower have entered into the Amended and Restated Loan and Security
Agreement, dated as of November 25, 2009 (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 an extension of the maturity date. Bank has agreed to
such request, 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
13.1 (Definitions). The
definition of “Maturity Date” in Section 13.1 of the Loan Agreement is amended
by deleting it in its entirety and replacing it with the following:
“Maturity Date” is March 1,
2010.
2.2 Section
13.1 (Definitions). The definition of “Restructuring Fee Date” in
Section 13.1 of the Loan Agreement is amended by deleting it in its entirety and
replacing it with the following:
“Restructuring Fee Date” is the
Maturity Date; provided, however, that if the Maturity Date is extended beyond
March 1, 2010 by Bank then the “Restructuring Fee Date” shall be the earlier to
occur of (a) the extended Maturity Date or (b) March 27, 2010.
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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 Transaction 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 Transaction Document.
3.2 This
Amendment shall be construed in connection with and as part of the Transaction
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Transaction 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 Transaction 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 most recently delivered to Bank remain
true, accurate and complete and have not been amended, supplemented or restated
and are and continue to be in full force and effect;
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
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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.
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, and (b) Borrower’s payment of
a facility fee in the amount of One Thousand Dollars ($1,000) in regard to the
extension of the Maturity Date set forth herein.
[Signature
page follows.]
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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
|
BORROWER
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Silicon
Valley Bank
By: /s/
Xxxxxxx Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
Title: Relationship
Manager
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Betawave
Corporation
By: /s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: Secretary
and General
Counsel
|
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