AMENDMENT NO. 9 TO LOAN AND SECURITY AGREEMENT
Exhibit 10.19
AMENDMENT NO. 9
This Amendment No. 9 to Loan and Security Agreement (this
“Amendment”) is entered
into as of September 1, 2010, by and among
Rae Systems Inc., a Delaware corporation
(“Borrower”), and Silicon Valley Bank (“Bank”), Capitalized terms used herein without
definition shall have the same meanings given them in the Loan Agreement (as defined below).
Recitals
A. Borrower and Bank have entered into that certain Loan and Security Agreement dated as
of March 14, 2007 (as amended and as may be further amended, restated, or otherwise modified, the
“Loan Agreement”), pursuant to which the Bank has extended and will make available to Borrower
certain advances of money
B. Borrower has now requested that Bank make certain changes to the Loan Agreement, all as set
forth more fully herein.
C. Subject to the representations and warranties of Borrower herein and upon the terms and
conditions set forth in this Amendment, Bank is willing to make the changes set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally
bound, the parties hereto agree as follows:
1. Amendment to Loan Agreement.
1.1 Section 8.11 (Compliance) of the Loan Agreement is amended and restated in its
entirety and replaced with the following:
“8.11 Compliance. Borrower or any of its Subsidiaries (a) violates or fails to comply
with the Foreign Corrupt Practices Act and/or any related statutes and regulations and such
violation or failure results in either (i) the imposition of potential monetary penalties in
excess of $3,700,000 in the aggregate or material criminal sanctions, or (ii) debarment from
doing business resulting in a loss of $1,000,000 of revenue in the aggregate or (b) uses any
Credit Extension for the settlement or proposed settlement with respect to clause (a)
above.”
2. Borrower’s Representations And Warranties. Borrower
represents and warrants that:
(a) immediately upon giving effect to this Amendment, (i) the
representations and warranties contained in the Loan 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 (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver
this Amendment and to perform its obligations under the Loan Agreement, as amended by this
Amendment;
(c) the certificate of incorporation, bylaws and other
organizational
documents of Borrower delivered to Bank on the Effective Date remain true, accurate and complete
and have not been amended, supplemented or restated and are and continue to be in full force and
effect;
(d) 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 by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower
and is the binding obligation of Borrower, enforceable against it 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; and
(f) as of the date hereof, it has no defenses against the obligations to pay
any
amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has
conducted in a commercially reasonable manner its relationships with such Borrower in connection
with this Amendment and in connection with the Loan Documents.
Borrower understands and acknowledges that Bank is entering into this Amendment in reliance
upon, and in partial consideration for, the above representations and warranties, and agrees that
such reliance is reasonable and appropriate.
3. Limitation. The amendments set forth in this Amendment shall be limited precisely
as written and shall not be deemed (a) to be a forbearance, waiver or modification of any other
term or condition of the Loan Agreement or of any other instrument or agreement referred to therein
or to prejudice any right or remedy which Bank may now have or may have in the future under or in
connection with the Loan Agreement or any instrument or agreement referred to therein; (b) to be a
consent to any future amendment or modification, forbearance or waiver to any instrument or
agreement the execution and delivery of which is consented to hereby, or to any waiver of any of
the provisions thereof; or (c) to limit or impair Bank’s right to demand strict performance of all
terms and covenants as of any date. Except as expressly amended hereby, the Loan Agreement shall
continue in full force and effect.
4. Effectiveness. This Amendment shall become effective upon the satisfaction of
all the following conditions precedent:
4.1 Amendment. Borrower and Bank shall have duly executed and delivered this Amendment to
Bank; and
4.2 Payment of Bank Expenses. Borrower shall have paid all Bank Expenses incurred through
the date of this Amendment.
5. Counterparts. This Amendment may be signed in any number of counterparts, and
by different parties hereto in separate counterparts, with the same effect as if the signatures to
each such counterpart were upon a single instrument. All counterparts shall be deemed an
original of this Amendment.
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6. Integration. This Amendment and any documents executed in connection herewith or
pursuant hereto contain the entire agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, understandings, offers and negotiations, oral or
written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any
judicial or arbitration proceeding, if any, involving this Amendment; except that any financing
statements or other agreements or instruments filed by Bank with respect to Borrower shall remain
in full force and effect.
7. Governing Law; Venue. THIS AMENDMENT SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA. Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal
courts in Santa Xxxxx County, California.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 9 to Loan Agreement to be
executed as of the date first written above.
| Borrower: | Rae Systems Inc. | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Printed Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | CFO | |||||
| Bank: | Silicon Valley Bank | |||||
| By: | ||||||
| Printed Name: | ||||||
| Title: | ||||||
