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FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT

Security Agreement

FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT | Document Parties: Silicon Valley Bank | SOLTA MEDICAL, INC You are currently viewing:
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Silicon Valley Bank | SOLTA MEDICAL, INC

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Title: FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Date: 3/31/2009
Industry: Medical Equipment and Supplies     Sector: Healthcare

FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT, Parties: silicon valley bank , solta medical  inc
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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.

 

Monthly Measuring Period

  

Minimum Tangible Net Worth

March 2009

  

$11,500,000

April 2009

  

$11,000,000

May 2009

  

$10,000,000

June 2009

  

$12,000,000

July 2009

  

$11,000,000

August 2009

  

$11,000,000

September 2009

  

$12,000,000

October 2009

  

$12,000,000

November 2009

  

$11,000,000

December 2009

  

$13,000,000

January 2010

  

$12,000,000

February 2010

  

$11,000,000

March 2010

  

$12,500,000

April 1, 2010 and all times thereafter

  

$14,000,000

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.

 

BANK

 

Silicon Valley Bank

 

By:

Name:                                                                                                                      

Title:                                                                                                                         

  

BORROWER

 

Solta Medical, Inc.

 

By:

Name:                                                                                                                  

Title:                                                                                                                    


EXHIBIT D—COMPLIANCE CERTIFICATE

 

TO:       SILICON VALLEY BANK

Date:                                                                  

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


 
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