Exhibit 10.1
FIRST AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
THIS FIRST AMENDMENT to Loan
and Security Agreement (this “Amendment”) is entered
into this 30th day of March, 2009 by and between Silicon Valley
Bank (“Bank”) and SOLTA MEDICAL, INC., a Delaware
corporation (“Borrower”) whose address is 25881
Industrial Boulevard, Hayward, CA 94545.
R ECITALS
A. Bank and Borrower have entered into that certain
Loan and Security Agreement dated as of the Effective Date (as the
same may from time to time be further amended, modified,
supplemented or restated, the “Loan
Agreement”).
B. Bank has extended credit to Borrower for the
purposes permitted in the Loan Agreement.
C. Borrower has requested that Bank amend the Loan
Agreement to (i) revise the financial covenants and
(ii) make certain other revisions to the Loan Agreement as
more fully set forth herein.
D. Bank has agreed to so amend certain provisions
of the Loan Agreement, but only to the extent, in accordance with
the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.
A GREEMENT
N OW ,
T HEREFORE
, 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. Amendments to Loan
Agreement.
2.1 Section 6.7 (Financial
Covenants). Section 6.7(a) is amended in its entirety
and replaced with the following:
“(a) Liquidity Ratio .
A ratio of Liquidity to all Indebtedness owing from Borrower to
Bank of at least (i) 1.85 to 1.00 at all times from
March 31, 2009 through March 31, 2010 and (ii) 1.65
to 1.00 at all times thereafter.”
2.2 Section 6.7 (Financial
Covenants). Section 6.7(c) is amended in its entirety
and replaced with the following:
“6.7 Tangible Net Worth
. A Tangible Net Worth of not less than the following at all times
during the applicable measuring period.
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Minimum Tangible Net Worth
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March 2009
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$11,500,000
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April 2009
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$11,000,000
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May 2009
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$10,000,000
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June 2009
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$12,000,000
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July 2009
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$11,000,000
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August 2009
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$11,000,000
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September 2009
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$12,000,000
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October 2009
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$12,000,000
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November 2009
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$11,000,000
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December 2009
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$13,000,000
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January 2010
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$12,000,000
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February 2010
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$11,000,000
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March 2010
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$12,500,000
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April 1, 2010 and all times
thereafter
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$14,000,000
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“
3. Limitation of
Amendments.
3.1 The amendments set forth in
Section 2 , above, are 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 Loan 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
Loan Document.
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3.2 This Amendment shall be construed in connection
with and as part of the Loan Documents and all terms, conditions,
representations, warranties, covenants and agreements set forth in
the Loan 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 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 (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 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;
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 (i) the due execution and delivery to Bank of
this Amendment by each party hereto and (ii) the payment by
Borrower of an amendment fee in the amount of Thirty Thousand
Dollars ($30,000).
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I N W ITNESS W HEREOF , 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
Silicon Valley Bank
By:
Name:
Title:
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BORROWER
Solta Medical, Inc.
By:
Name:
Title:
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EXHIBIT D—COMPLIANCE
CERTIFICATE
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TO: SILICON
VALLEY BANK
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Date:
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FROM: SOLTA MEDICAL, INC.
The undersigned authorized officer
of SOLTA MEDICAL, INC. (“Borrower”) certifies that
under the terms and conditions of the Loan and Security Agreement
between Borrower and Bank (the “Agreement”),
(1) Borrower is in complete compliance for the period ending
_______________ with all required covenants except as noted below,
(2) there are no Events of Default, (3) all
representations and warranties in the Agreement are true and
correct in all material respects on this date except as noted
below; provided, however, that such materiality qualifier shall not
be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof; and
provided, further that those representations and warranties
expressly referring to a specific date shall be true, accurate and
complete in all material respects as of such date,
(4) Borrower, and each of its Subsidiaries, has timely filed
all required tax returns and reports, a