First Modification to Loan and Security Agreement
Exhibit
10.8
First
Modification to Loan and Security Agreement
This
First
Modification
to Loan and
Security
Agreement (this “Modification”) is entered into by and
between ALPHA
INNOTECH CORPORATION
(“Borrower”) and
BFI Business Finance
(“Lender”) as of this 26TH
day of October,
2007, at
San Jose, California.
RECITALS
A. Lender
and Borrower have previously entered into or are concurrently
herewith entering into a
Loan and
Security Agreement
(the “Agreement”) dated March
9,
2004.
B. Lender
and Borrower may have previously executed one
or more Modifications
to Loan and
Security
Agreement (the "Previous
Modification(s)").
C. Borrower
has requested, and Lender has agreed, to modify the Agreement as set forth
below.
AGREEMENT
For
good
and valuable consideration, the parties agree as set forth below:
1. Incorporation by Reference. The
Agreement and the Previous Modification(s), if any, as modified hereby and
the
Recitals are incorporated herein by this reference.
2. Effective Date. The
terms of this Modification shall be in full force and effect as of
October 26, 2007.
3. Modification
to
Agreement. The Agreement is hereby modified to amend and restate the
section(s) referenced below:
|
|
a.
|
Section 1.
Lender shall from time to time in Lender’s
sole discretion advance sums to Borrower up
to eighty percent (80%)
of the Net Face Amount of Prime
Accounts (as defined below in Paragraph 6) and such other sums
as Lender may determine (each, an “Advance” and
collectively,
|
“Advances”),
but in no event shall the aggregate indebtedness (under this Agreement or under
all Obligations) to Lender at any one time exceed without Lender’s prior written
approval, the sum of
One Million
Five Hundred Thousand
and 00/100 Dollars
($1,500,000.00)
(the “Maximum Amount”). In the event that the balance
owing under this Agreement exceeds the Maximum Amount, or
in the event that said balance exceeds the percentage set forth above of the
Value of Prime Accounts as determined by Lender, Borrower understands
and agrees that Lender shall make no further Advances to the Borrower
unless and until Borrower pays Lender the amount of such excess (each an
“Overadvance”), and Borrower hereby promises to pay the Overadvance to Lender
upon Lender’s demand.
b. Section 43. Lender
agrees that Accounts of
a foreign account debtor or its affiliates
(each, a
"Foreign
Account") may be deemed to be Prime Accounts provided: (i)
such Foreign Account otherwise is a Prime Account; (ii) Borrower has
obtained credit insurance for each Foreign Account on terms, in amounts
and from insurers satisfactory to Lender; and (iii) such
Foreign Accounts do not constitute more than fifty
(50.00%) of all otherwise Prime Accounts (but
the portion of such Foreign Accounts not in excess of such percentage may be
deemed to be Prime Accounts).
CAmod (rev. 09.19.2003) Page 1
of 2 Initial
Here F
4. Condition Precedent. It shall be a Condition Precedent to the effectiveness of this Modification
that Lender shall have received a fully executed Officer
Certificate from Xxx Xxxxxxxxx.
5. Fee. At the time of execution of the Modification, Borrower agrees to pay a one-time fee in the
amount of Five
Thousand
and 00/100
Dollars
($5,000.00).
6. Legal Effect.
Except as specifically set forth in this Modification, all of the terms and conditions
of the Agreement remain in
full force and effect.
7. Integration. This is an integrated Modification and supersedes all prior negotiations andagreements regarding the
subject matter hereof. All amendments hereto must be in writing and signed by the
parties.
IN WITNESS WHEREOF,
the parties have executed this First
Modification to Loan and Security Agreement
as of the date first set forth above.
BFI Business
Finance ALPHA
INNOTECH CORPORATION
By: Xxxxx
Xxxxxx By: Xxx
Xxxxxxxxx
Its: President Its: Chief
Executive Officer
CAmod (rev. 09.19.2003) Page 2
of 2
