FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENTSecurity Agreement |
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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 effective April 30, 2008, by and between
SILICON VALLEY BANK (“
Bank ”)
and
GPS INDUSTRIES, INC. ,
a Nevada corporation, (“
Borrower ”)
.
Recitals
A. Bank
and Borrower have entered into that certain Loan and Security
Agreement dated as of February 28, 2008 (as may from time to time
be amended, modified, supplemented or restated, collectively the
“
Loan Agreement ”).
Bank has extended credit to Borrower for the purposes permitted in
the Loan Agreement.
B. Borrower
is currently in default under the Loan Agreement following the
death of Guarantor Douglas J. Wood (the “
Existing Default ”).
C. Borrower
is also in default for its failure to deliver its financial
statements required by Section 6.2 of the Loan Agreement for month
ending February 29, 2008 (the “
Delivery Default ”).
D. Borrower
has requested that Bank: (i) increase the amount of the Revolving
Line to $6,500,000, (ii) forbear from exercising its rights and
remedies against Borrower from the date hereof for the Existing
Default through July 31, 2008 (the “
Forbearance Period ”),
and (iii) waive the Delivery Default.
E. Although
Bank is under no obligation to do so, Bank is willing to make the
changes set forth herein, on all on the terms and conditions set
forth in this Amendment and so long as Borrower complies with the
terms, covenants and conditions set forth in this Amendment in a
timely manner.
Agreements
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.
Forbearance.
2.1.
Forbearance Period .
So long as no Event of Default, other than the Existing Default,
occurs, subject to the terms and conditions set forth herein, Bank
shall forbear from filing any legal action or instituting or
enforcing any rights and remedies it may have against Borrower
through the Forbearance Period. Except as expressly provided
herein, this Amendment does not constitute a waiver or release by
Bank of any Obligations or of any existing Event of Default, or any
Event of Default which may arise in the future after the date of
execution of this Amendment. Borrower understands that Bank has
made no commitment and is under no obligation whatsoever to grant
any additional extensions of time at the end of the Forbearance
Period.
2.2.
Forbearance Terms .
Repayment and performance of all obligations of Borrower to Bank
under the Loan Agreement and this Amendment shall be secured by the
Collateral.
3.
Limitation of Forbearance .
3.1. This
Amendment is effective for the purposes set forth herein and shall
be limited precisely as written and shall not be deemed to, other
than as specifically set forth herein, (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.
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 are hereby ratified and confirmed and shall remain in
full force and effect.
4.
Waiver. Subject
to the terms of Section 10 below, Bank hereby waives (i) the
Delivery Default. Except as provided in the above described default
and except as otherwise set forth herein, Bank's agreement to waive
the Delivery Default and the foregoing covenants (1) in no way
shall be deemed an agreement by Bank to waive Borrower's compliance
with the above-described covenants as of all subsequent dates, and
(2) shall not limit or impair the Bank's right to demand strict
performance of these covenants as of all other subsequent dates,
and (3) shall not limit or impair Bank's right to demand strict
performance of all other covenants as of any date.
5.
Amendments .
5.1.
Definitions .
The following definitions are either amended and restated in their
entirety or inserted, as applicable:
“
Borrowing Base ”
is the lesser of (a) the maximum principal amount guaranteed by
Guarantor pursuant to the Guaranty, plus the sum of, without
duplication, (i) the Value of the Pledged CD, (ii) the Value of any
certificates of deposit pledged to Bank by Hansen to secure the
Obligations, and (iii) the Value of any certificates of deposit
pledged to Bank by Great White to secure the Obligations, or (b)
$6,500,000.
2
“
Great White ”
is Great White Shark Enterprises, LLC, a Florida limited liability
company.
“
Revolving Line ”
is an Advance or Advances in an amount equal to Six Million Five
Hundred Thousand Dollars ($6,500,000).
“
Value ”
shall mean with respect to any certificates of deposit pledged to
Bank to secure the Obligations, including, but not limited to, any
Pledged CD, on any date, a dollar value at the face amount
thereof.
6.
Representations and Warranties. To
induce Bank to enter into this Amendment, Borrower hereby
represents and warrants to Bank as follows:
6.1. 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 other than the Existing Default has
occurred and is continuing;
6.2. Borrower
has the power and authority to execute and deliver this Amendment
and to perform its obligations under the Loan
Agreement;
6.3. The
organizational documents of Borrower delivered to Bank on the
Effective Date remain true, accurate and compl
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