SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.2
SECOND
AMENDMENT
TO
THIS SECOND AMENDMENT to Loan
and Security Agreement (this “Amendment”) is
entered into this 14th day of August, 2009, by and between Silicon Valley
Bank (“Bank”)
and Betawave Corporation, a Nevada corporation (“Borrower”), whose
address is 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000.
Recitals
A. Bank
and Borrower have entered into the Loan and Security Agreement, dated as of
March 27, 2009, as amended by the First Amendment to Loan and Security
Agreement, dated as of July 13, 2009, between Bank and Borrower (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. Bank
and Borrower have agreed to amend the Loan Agreement, to the extent, and 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. Amendment
to Loan Agreement.
2.1 Section
2.3 (Fees). Subsection
(b) of Section 2.3 is amended in its entirety and replaced with the
following:
(b) Collateral Handling
Fee. A fully-earned, non-refundable collateral handling fee of
$750 a month, on the last day of each month, if the Liquidity Ratio is less than
2.25 to 1.00, which fee shall continue to accrue until the Liquidity Ratio is at
least 2.25 to 1.00 for two (2) consecutive months;
3. Limitation
of Amendment.
3.1 The
amendment set forth in Section
2, above, is 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.
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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 delivered to Bank as of March 28, 2009,
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
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.
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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 the due execution and delivery to Bank
of this Amendment by each party hereto.
[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/
Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title: Relationship
Manager
|
Betawave
Corporation
By: /s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: Secretary
and General
Counsel
|
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