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Exhibit 10.1
NINTH A
MENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS NINTH AMENDMENT
to Loan and Security Agreement (this
“Amendment”)
is entered into on May 28, 2008, by and between
SILICON
VALLEY BANK (“Bank”)
and
the following (collectively, jointly and severally, the
"Borrower") whose address is 20200 Sunburst Street,
Chatsworth, California 91311:
NORTH
AMERICAN SCIENTIFIC ,
INC., a Delaware corporation (“NASI”);
and
NORTH
AMERICAN SCIENTIFIC, INC., a California corporation
(“NASI-CA”).
Recitals
A. Bank
and Borrower have entered into that certain Loan and Security
Agreement, with an Effective Date of October 5, 2005 (as the same
has been, and may hereafter from time to time be 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, as herein set
forth, and Bank has agreed to the same, but only to the extent, in
accordance with the terms, subject to the conditions and in
reliance upon the representations and warranties set forth
herein .
Agreement
Now, Therefore, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which are 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. The
Loan Agreement is hereby amended as follows, effective as of the
date hereof:
2.1
Amended and Restated Schedule 2 .
Schedule 2 to the Loan Agreement is amended and restated to read as
set forth in the Amended and Restated Schedule 2 to Loan and
Security Agreement, which is being signed by Borrower and Bank
concurrently herewith.
2.2
Prepayment Fee .
Section 2.1.1(d) is hereby amended in its entirety to read as
follows:
(d)
The
Committed Revolving Line may be terminated prior to the
Maturity Date by Borrower, effective three (3) Business Days
after written notice of termination is given to Bank, in which
event Borrower shall pay in full all Obligations arising in
connection with the Committed Revolving Line on the effective
date of termination. Notwithstanding any such termination,
Bank’s lien and security interest in the Collateral and
all of Bank’s rights and remedies under this Agreement
shall continue until Borrower fully satisfies its Obligations
(including, without limitation, those not pertaining to the
Committed Revolving Line). If such termination is at
Borrower’s election or at Bank’s election due to
the occurrence and continuance of an Event of Default,
Borrower shall pay to Bank, in addition to the payment of any
other expenses or fees then-owing, a termination fee in an
amount equal to 1.0% of the Revolving Line Credit Amount;
provided that no termination fee shall be charged if the
Committed Revolving Line is replaced with a new facility from
another division of Silicon Valley Bank.
Furthermore,
if the Growth Capital Loan is prepaid for any reason, the
Borrower shall pay to Bank a prepayment fee with regard to the
Growth Capital Loan in an amount equal to (i) three
percent (3.00%) of the amount of the outstanding principal
balance of the Growth Capital Loan prior to such prepayment,
if prepayment occurs on or before May 28, 2009 (the first
anniversary of the date of this Agreement); and (ii) two
percent (2.00%) of the amount of the outstanding principal
balance of the Growth Capital Loan prior to such prepayment,
if prepayment occurs after May 28, 2009 but on or before May
28, 2010 (the second anniversary of the date of this
Agreement). No termination fee shall be charged if either (i)
the Capital Growth Loan is prepaid for any reason after May
28, 2010 or (ii) the Growth Capital Loan is replaced with a
new facility from another division of Silicon Valley
Bank.
2.3
Modified Definition of Committed Revolving Line.
The
definition of “Committed Revolving Line” set forth in
Section 13.1 of the Loan Agreement is hereby amended to read as
follows:
"
Committed Revolving Line "
is the revolving credit facility hereunder relating to the making
of Advances in an aggregate amount not to exceed Three Million
Dollars ($3,000,000) on a joint basis for all Borrowers and
otherwise subject to the terms and conditions hereof.
2.4
Modified Definition of Quick Ratio Test
. The
definition of “Quick Ratio Test” set forth in Section
13.1 of the Loan Agreement that currently reads as
follows:
“Quick Ratio Test” .
As used herein, the “Quick Ratio Test” will
be
deemed to be met if Borrower’s Adjusted Quick Ratio at the
end of August, 2006 and at the end of each subsequent month is at
least 1.00 to 1.00. If at the end of any such subsequent month
Borrower’s Adjusted Quick Ratio is not at least 1.00 to 1.00,
then Borrower shall not thereafter be deemed to meet the Quick
Ratio Test, unless Borrower’s Adjusted Quick Ratio is at
least 1.00 to 1.00 for a subsequent continuous period, continuous
to the date of determination, and such continuous period is at
least three calendar months. As used herein, “Adjusted Quick
Ratio” means the ratio of (i) Borrower’s unrestricted
cash plus Borrower’s net Accounts to (ii) the total of
Borrower’s current liabilities (including all of the
Obligations to Bank).
is
hereby amended to read as follows:
“Quick Ratio Test” .
As used herein, the “Quick Ratio Test” will be deemed
to be met if Borrower’s Quick Ratio at the end of May 2008
and at the end of each subsequent month is at least 1.00 to 1.00.
If at the end of any such subsequent month Borrower’s Quick
Ratio is not at least 1.00 to 1.00, then Borrower shall not
thereafter be deemed to meet the Quick Ratio Test, unless
Borrower’s Quick Ratio is at least 1.00 to 1.00 for a
subsequent continuous period, continuous to the date of
determination, and such continuous period is at least three
calendar months. As used herein, “Quick Ratio” means
the ratio of (i) Borrower’s unrestricted cash plus
Borrower’s net Accounts to (ii) the total of Borrower’s
current liabilities.
2.5
Exhibit D. Exhibit
D to the Loan Agreement, the form of Compliance Certificate, is
hereby replaced by Exhibit D hereto.
2.6
Exhibit E Continues Effective .
As provided in the First Amendment, Exhibit E to the Loan Agreement
(as modified by this Amendment below) continues to be effective and
operative.
2.7
Modified Collection of Accounts .
Section 2 of Exhibit E to the Loan Agreement, which presently reads
as follows:
(2)
Collection
of Accounts. Borrower shall direct all Account Debtors to make
payment of all Accounts directly to a lockbox established with Bank
(the ‘Lockbox’). Borrower shall hold all payments on,
and proceeds of, Accounts and all other Collateral in trust for
Bank, and Borrower shall immediately deposit all such payments and
proceeds in the Lockbox. All sums received in the Lockbox shall be
transferred by Bank to Borrower’s operating account at
Bank,
provided that if,
at any time, the Quick Ratio Test is not met and the Reduced
Borrowing Test is not met,
then all
sums received in the Lockbox shall be applied by Bank to the
Obligations in such order as Bank shall determine, and any excess
shall be transferred by Bank to Borrower’s operating account
at Bank. Bank or its designee may, at any time, notify Account
Debtors that the Accounts have been assigned to Bank. Nothing in
this Exhibit limits the restrictions on Transfers of Collateral set
forth elsewhere in this Agreement.
is
hereby amended to read as follows:
(2)
Collection
of Accounts. Borrower shall direct all Account Debtors to make
payment of all Accounts directly to a lockbox established with
Bank (the ‘Lockbox’). Borrower shall hold all
payments on, and proceeds of, Accounts and all other
Collateral in trust for Bank, and Borrower shall immediately
deposit all such payments and proceeds in the Lockbox. All
sums received in the Lockbox shall be transferred by Bank to
Borrower’s operating account at Bank,
provided that if,
at any time, the Borrowing Base is less than 2 times the
outstanding principal balance of the Revolving Loans (including any
cash management reserves),
then all
sums received in the Lockbox shall be applied by Bank to the
Obligations pertaining to the Revolving Loans in such order as Bank
shall determine, and any excess shall be transferred by Bank to
Borrower’s operating account at Bank. Bank or its designee
may, at any time, notify Account Debtors that the Accounts have
been assigned to Bank. Nothing in this Exhibit limits the
restrictions on Transfers of Collateral set forth elsewhere in this
Agreement.
2.8
Modified 10-Q Reporting. Paragraph
7 of Section (7) of Exhibit E to the Loan Agreement is hereby
amended in its entirety to read as follows:
7.
Within
the earlier of (i) 45 days from the end of each fiscal quarter
or (ii) 5 days following the filing with the Securities and
Exchange Commission of Borrower’s Quarterly Report on
form 10-Q, a copy of Borrower’s Form 10-Q.
2.9
Modified 10-K Reporting. Paragraph
8 of Section (7) of Exhibit E to the Loan Agreement is hereby
amended in its entirety to read as follows:
8.
Within
the earlier of (i) 90 days from the end of each fiscal year
or
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