LETTER AGREEMENT
December
__, 2006
Lighting
Science Group Corporation
0000
XxXxxxxx Xxx., Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxx Xxxxxxxx
LETTER
AGREEMENT
Ladies
and Gentlemen:
Reference
is hereby made to that certain Loan Agreement dated as of June 29, 2006 (as
may
be amended from time to time, the “Loan
Agreement”)
by and
between Lighting Science Group Corporation, a Delaware corporation
(“Borrower”),
and
Bank of Texas, N.A. (“Bank”).
Capitalized terms not otherwise defined herein have the meaning given to such
terms in the Loan Agreement.
Borrower
has requested that Bank amend the Loan Documents to increase the amount of
the
Revolving Loan from $2,000,000.00 to $2,300,000.00. Bank consents to such
amendment subject to the terms and conditions set forth herein.
1. Amendment
to Loan Agreement.
Section
1.1
of the
Loan Agreement is hereby amended by amending and restating in its entirety
the
definition listed below as follows:
“’Committed
Sum’
means
$2,300,000.00.”
2. Conditions
Precedent.
The
effectiveness of this Letter Agreement is subject to the satisfaction of the
following conditions precedent, unless specifically waived in writing by
Bank:
(a) The
representations and warranties contained in the Loan Agreement and in all other
Loan Documents shall be true and correct as of the date hereof as if made on
the
date hereof;
(b) Bank
shall have received this Letter Agreement, agreed to, acknowledged and duly
executed by Borrower;
(c) Bank
shall have received an amended and restated Guaranty Agreement duly executed
for
the benefit of Bank by such Guarantors as Bank may require, in form and
substance satisfactory to Bank;
(d) Borrower
shall have executed and delivered to Bank an amended and restated revolving
promissory note in form and substance satisfactory to the Bank; and
(e) Borrower
shall execute a Certificate of Corporate Resolutions in form and substance
satisfactory to the Bank.
3. Ratifications,
Representations, and Warranties.
(a) Ratifications
and Acknowledgements by Borrower.
Borrower ratifies and confirms that (i) each of the Loan Agreement, the Note
and
the other Loan Documents, as may be amended, is and remains in full force and
effect in accordance with its respective terms; and (ii) each of the Loan
Documents, as may be amended, is and shall continue to be legal, valid, binding
and enforceable in accordance with its respective terms. The undersigned officer
of Borrower executing this Letter Agreement represents and warrants that he
has
full power and authority to execute and deliver this Letter Agreement on behalf
of Borrower and that such execution and delivery has been duly authorized by
the
Board of Directors of Borrower. Any reference in any of the Loan Documents
to
the “Loan Agreement” or “Note” shall be deemed to include references to the Loan
Agreement and Note as amended through the date hereof.
(b) Renewal
of Security Interests.
Borrower renews, regrants and affirms the liens and security interests created
and granted in the Security Agreement and all other Loan Documents. Borrower
agrees that this Letter Agreement shall in no manner affect or impair the liens
and security interests securing the indebtedness evidenced by the Note and
the
other Loan Documents and that such liens and security interests shall not in
any
manner be waived, the purposes of this Letter Agreement being to modify the
Loan
Documents as herein provided, and to carry forward all liens and security
interests securing same, which are acknowledged by Borrower to be valid,
subsisting and continuing.
(c) Representations
and Warranties of Borrower.
Borrower represents and warrants to Bank as follows: (i) the execution, delivery
and performance of this Letter Agreement and any and all other Loan Documents
executed and/or delivered in connection herewith have been authorized by all
requisite corporate action on the part of Borrower; (ii) the representations
and
warranties contained in the Loan Agreement, as amended hereby, and the other
Loan Documents are true and correct on and as of the date hereof as though
made
on and as of the date hereof; (iii) no default or Event of Default under the
Loan Agreement or other Loan Documents has occurred; (iv) Borrower is in full
compliance with all covenants and agreements contained in the Loan Documents;
(v) Borrower
has not granted or suffered to exist any security interest, lien or encumbrance
on the assets of Borrower other than Bank’s first priority liens; and (vi)
Borrower shall pay promptly when due all amounts owed under the Loan Agreement,
the Note and the other Loan Documents.
4. Loan
Document.
This
Letter Agreement shall constitute a Loan Document under the Loan
Agreement.
5. Governing
Law.
THIS
LETTER AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF
TEXAS (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES).
6. Counterparts.
This
Letter Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be deemed an original for all purposes, and all
of
which together shall constitute one and the same instrument. Each counterpart
hereof may be transmitted via facsimile and a facsimile of a counterpart signed
by one or more of the parties shall be deemed an original for all purposes
and
have the same force and effect as a manually signed original.
7. Loan
Agreement Remains in Effect; No Waiver.
Except
as expressly provided herein or amended through the date hereof, all terms
and
provisions of the Loan Agreement, Security Agreement and the other the Loan
Documents shall remain unchanged and in full force and effect and are hereby
ratified and confirmed. No waiver by the Bank of any Event of Default shall
be
deemed to be a waiver of any other Event of Default. No delay or omission by
Bank in exercising any power, right or remedy shall impair such power, right
or
remedy or be construed as a waiver thereof or an acquiescence therein, and
no
single or partial exercise of any such power, right or remedy shall preclude
other or further exercise thereof or the exercise of any other power, right
or
remedy under the Loan Agreement, the Loan Documents or otherwise.
8. Survival
of Representations and Warranties.
All
representations and warranties made in this Letter Agreement or any other Loan
Document shall survive the execution and delivery of this Letter Agreement
and
the other Loan Documents, and no investigation by Bank or any closing shall
affect such representations and warranties or the right of Bank to rely upon
such representations and warranties.
9. Severability.
Any
provision of this Letter Agreement held by a court of competent jurisdiction
to
be invalid or unenforceable shall not impair or invalidate the remainder of
this
Letter Agreement and the effect thereof shall be confined to the provision
so
held to be invalid or unenforceable.
10. Successors
and Assigns.
This
Letter Agreement is binding upon and shall inure to the benefit of the Bank
and
Borrower and their respective successors and assigns; provided, however, that
Borrower may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of Bank.
11. Headings.
The
headings, captions and arrangements used in this Letter Agreement are for
convenience only and shall not affect the interpretation of this Letter
Agreement.
[Remainder
of page intentionally left blank.]
Sincerely,
BANK
OF
TEXAS, N.A.
By:
Xxx
Xxxxxx, Assistant Vice President
ACCEPTED,
ACKNOWLEDGED, AND AGREED TO
EFFECTIVE
AS OF THE DATE FIRST WRITTEN ABOVE:
BORROWER:
LIGHTING
SCIENCE GROUP CORPORATION,
a
Delaware corporation
By:
Name:
Title:
