AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT AND PROMISSORY NOTE DATED MAY 18, 2009
Exhibit
10.1
AMENDMENT
NO. 1 TO
PROMISSORY
NOTE DATED MAY 18, 2009
THIS
AMENDMENT NO. 1 (THIS “AMENDMENT”) TO THAT CERTAIN
LOAN AND SECURITY AGREEMENT DATED AS OF MAY 18, 2009 (the “Loan and Security Agreement”) is entered into by and
between Applied Solar, Inc., a Nevada corporation (“Borrower”), and The Quercus Trust
(“Lender”) and that certain promissory
note dated May 18, 2009 in the principal amount of $698,0000 (“May 2009 Note”), effective as
of June 11, 2009. All terms used herein and not otherwise defined
have the respective definitions ascribed thereto in the Loan and Security
Agreement or the May 2009 Note.
WHEREAS,
Lender and Borrower previously entered into the Loan and Security Agreement,
pursuant to which, among other things, Lender loaned $698,000 to
Borrower.
WHEREAS,
Borrower has advised Lender that it needs an additional $85,000 for certain
restructuring expenses and general corporate purposes.
WHEREAS,
Lender desires to lend the Additional Funds pursuant to the terms of that
certain promissory note dated concurrently herewith, provided that such
Additional Funds are secured by the Collateral.
WHEREAS,
the parties desire to extend the Maturity Date of the May 2009 Note to June 30,
2009.
ACCORDINGLY,
Borrower and Lender desire to amend the Loan and Security Agreement and the May
2009 Note as more fully set forth herein.
NOW
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good, valuable, and binding consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Amendment of Section 1 of
the Loan and Security Agreement.Section 1 is hereby amended and restated
to read as follows:
1. Loan. Subject
to the terms and conditions of this Agreement, the Note dated May 18, 2009 and
the Note dated June 11, 2009 (collectively, and together with any and all
financing statements and any other agreements or instruments executed by
Borrower at Lender’s request the “Loan Documents”), and subject to there being
no Event of Default (as defined herein) under any of the Loan Documents, (or
event which would, with the giving of notice or the passage of time, mature into
an Event of Default), Lender agrees to lend to Borrower an aggregate amount not
to exceed the principal sum of Seven Hundred Eighty-Three Thousand Dollars
($783,000) on the terms set forth in the Notes and in this Agreement (the
“Loans”).
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2. Amendment to Section 1 of
the May 2009 Note. Section 1 is hereby amended and restated to read as
follows:
1. Payments
of Principal. On the Maturity Date, unless an Event of Default shall
have sooner occurred, Borrower shall pay to Lender, in cash, all outstanding
principal under this Secured Promissory Note (this “Note”). The
“Maturity Date” shall be June 30, 2009. Borrower may prepay all or
any portion of the amounts owing under this Note at any time without fee, charge
or premium.
3. All other Terms
Unchanged. Except as specifically set forth herein, all other
terms and conditions of the Loan and Security Agreement and the May 2009 Note
remain unchanged and Borrower confirms that the Loan and Security Agreement and
the May 2009 Note remain in full force and effect as of the date
hereof. This Amendment forms a part of, and is integrated into, the
Loan and Security Agreement and the May 2009 Note. This Amendment may be
executed in one or more counterparts and may include multiple signature pages,
all of which will be deemed to be one instrument. Photocopies and
facsimiles of original signature pages may be deemed as originals.
[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 day and year first written above.
BORROWER
a Nevada
Corporation
By:__________________________
Name:
Title:
LENDER:
THE
QUERCUS TRUST
By:__________________________
Name:
Xxxxx Xxxxxxx
Title: Trustee
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