AMENDMENT NO. 2 TO SECURED CONVERTIBLE MULTI-DRAW TERM LOAN FACILITY AGREEMENT
EXHIBIT
10.17
AMENDMENT
NO. 2
TO
SECURED
CONVERTIBLE MULTI-DRAW
TERM
LOAN FACILITY AGREEMENT
This
Amendment No. 2 to the Secured Convertible Multi-Draw Term Loan Facility
Agreement, dated as of the 11th day
of January, 2008, by and between BioLife Solutions, Inc., and Xxxxxx
Girschweiler and Xxxxxx Xxxxxxxx, as previously amended on the 20th day
of October, 2008 (the “Agreement”), is entered into as of the 16th day of
December, 2009. Any capitalized term not otherwise defined herein shall have the
meaning ascribed to such term in the Agreement.
The
heading to the Agreement shall be amended to read as follows:
“SECURED
MULTI-DRAW TERM LOAN FACILITY AGREEMENT.”
The third
WHEREAS clause of the Agreement is hereby amended to read as
follows:
“WHEREAS,
each Investor is willing to extend to the Company a secured multi-draw term loan
facility (the “Facility”) of $4,500,000, which Facility shall (a) incorporate
(i) a refinancing of the Investor’s Notes and accrued interest thereon, in the
aggregate amount of $1,431,563.30, and (ii) $300,000 being advanced concurrently
with the execution and delivery of this Agreement, (iii) a commitment from each
Investor to advance to the Company, from time to time, additional amounts up to
a maximum of $2,768,436.70, (b) bear interest at the rate of 7% per annum on the
principal balance outstanding from time to time, (c) be evidenced by a secured
multi-draw term loan note in the form attached hereto as Exhibit A (the
“Multi-Draw Term Loan Note”), (d) become due and payable, together with accrued
interest thereon, on the earlier of (i) January 11, 2011 (the “Maturity Date”),
or (ii) an Event of Default (as defined in the Multi-Draw Term Loan Note), and
(e) be secured by all of the Company’s assets.”
Section
1(b) of the Agreement is hereby amended to read as follows:
“1. The
Facility.
(b) Multi-Draw Term Loan
Note. Each
Facility shall be evidenced by a Multi-Draw Term Loan Note, which Multi-Draw
Term Loan Note shall (a) bear interest at the rate of 7% per annum, (b) become
due and payable, together with accrued interest thereon on the earlier of (i)
the Maturity Date, or (ii) an Event of Default (as defined in the Multi-Draw
Term Loan Note), and (c) be secured by all of the Company’s
assets.”
Section 4.13 of the Agreement is hereby
deleted.
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Section 5
of the Agreement is hereby amended to read as follows:
“5. Resales of the Multi-Draw
Term Loan Note by Investor; Hedging; Legends.
5.1 Resales of the Multi-Draw
Term Loan Note; Hedging. Investor understands that the
Multi-Draw Term Loan Note is deemed to be a "restricted security" as defined in
Rule 144 under the Act. Investor acknowledges, covenants and agrees,
with respect to the Multi-Draw Term Loan Note, (a) that it will only be resold
by Investor, and the Company is to refuse to register any transfer not made, in
accordance with Regulation S, or pursuant to an exemption from registration
under the Act and applicable State Acts, or pursuant to an effective and current
registration statement under the Act, and (b) not to engage in hedging
transactions unless in compliance with the Act. Until the
restrictions on transfer terminate as provided in Section 5.3 hereof, Investor
shall cause a transferee of the Multi-Draw Term Loan Note to execute, prior to
the transfer, an agreement containing investor representations and covenants
reasonably requested by the Company and substantially similar to those contained
in Sections 4 and 5 hereof.
5.2 Legend. To
insure compliance with the provisions of the Act and State Acts, the Multi-Draw
Term Loan Note shall bear a legend (the "Regulation S Restrictive Legend")
substantially as follows:
"THE
ISSUANCE OF THE SECURITIES EVIDENCED HEREBY HAS NOT BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES COMMISSION OF ANY STATE UNDER
ANY STATE SECURITIES LAW. THE SECURITIES WERE ISSUED PURSUANT TO A
SAFE HARBOR FROM REGISTRATION UNDER REGULATION S ("REGULATION S") PROMULGATED
UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED UNLESS SUCH OFFERS, SALES, AND TRANSFERS ARE REGISTERED UNDER THE
ACT AND APPLICABLE STATE SECURITIES LAWS, ARE MADE PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS, OR ARE MADE IN
ACCORDANCE WITH REGULATION S PROMULGATED UNDER THE ACT. FURTHERMORE,
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE ACT."
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5.3 Termination of Restrictions;
Removal of Legend.
(a) The
Regulation S Restrictive Legend may be removed (and the restrictions on the
transferability of the Multi-Draw Term Loan Note shall terminate) when (i) the
sale of the Multi-Draw Term Loan Note, has been registered under the Act and
sold by the holder thereof in accordance with such registration, (ii) a written
opinion to the effect that such restrictions are no longer required or necessary
under any federal or state securities law or regulation has been received from
counsel for the holder thereof (provided that such counsel, and the form and
substance of such opinion, are reasonably satisfactory to the Company) or
counsel for the Company, (iii) the Multi-Draw Term Loan Note, has been sold
without registration under the Act in compliance with Rule 144 or Rule 144A
promulgated under the Act, (iv) the Company is reasonably satisfied that the
holder of the Multi-Draw Term Loan Note and New Equity Securities, as the case
may be, shall be entitled to sell the Multi-Draw Term Loan Note in accordance
with the terms of Rule 144 or of Rule 144A promulgated under the Act, or (v) a
letter or an order has been issued to the holder thereof by the staff of the
Securities and Exchange Commission (the "Commission") stating that no
enforcement action shall be recommended by such staff or taken by the Commission
if the Note Multi-Draw Term Loan, are transferred in the United States or to a
U.S. Person without registration under the Act in accordance with the conditions
set forth in such letter or order and such letter or order specifies that no
subsequent restrictions on transfer are required.
(b) Whenever
the restrictions imposed by this Section 5 shall terminate as hereinabove
provided, the holder of the Multi-Draw Term Loan Note then outstanding as to
which such restrictions shall have terminated shall be entitled to receive from
the Company, without expense to such holder, a new certificate for the
Multi-Draw Term Loan Note, not bearing the Regulation S Restrictive Legend.
“
Section
6.2 of the Agreement is hereby amended to read as follows:
“6.2 Authorization. All
corporate action on the part of the Company necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder, and the authorization, issuance, and delivery of the
Multi-Draw Term Loan Note, have been taken. This Agreement
constitutes valid and legally binding obligation of the Company, enforceable in
accordance with its terms. The Company has obtained all consents and
approvals required for it to execute, deliver, and perform this
Agreement.”
Section
6.4 of the Agreement is hereby amended to read as follows:
“6.4 Valid Issuance of Multi-Draw
Term Loan Note. The Multi-Draw Term Loan Note, when
issued, sold, and delivered, in accordance with this Agreement, shall be duly
executed, issued, and delivered, and shall constitute valid and legally binding
obligation of the Company, enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium, or other similar laws affecting
creditors' rights, and subject to general equity principles and to limitations
on availability of equitable relief, including specific
performance).”
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Except as
amended hereby, all of the provisions of the Agreement remain in full force and
effect.
IN
WITNESS WHEREOF, the parties have executed this Amendment No. 2 to the Agreement
as of the day and year first above written.
| BioLife Solutions, Inc. | |||
|
|
By:
|
/s/ Xxxx Xxxx | |
| Xxxx Xxxx, President & CEO | |||
| /s/Xxxxxx Girschweiler | |||
| Xxxxxx Girschweiler | |||
| /s/Xxxxxx Xxxxxxxx | |||
| Xxxxxx Xxxxxxxx |
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