|
Exhibit
10.1
AMENDMENT NUMBER TWO TO CONSENT AND WAIVER UNDER LOAN DOCUMENTS
This AMENDMENT NUMBER TWO TO CONSENT AND WAIVER UNDER LOAN
DOCUMENTS (the “Amendment”) is made and entered into as
of January 8, 2009 and effective as of January 2, 2009, by and
among ISCO International, Inc., a Delaware corporation (the
“Company”), Alexander Finance, L.P., an Illinois
limited partnership (“Alexander”) and Manchester
Securities Corporation, a New York corporation
(“Manchester”). W I T N E S S E T H:
WHEREAS, on January 3, 2008, the Company, Alexander, Manchester,
Spectral Solutions, Inc., a Colorado corporation
(“Spectral”), and Illinois Superconductor Canada
Corporation, a corporation organized under the laws of Ontario,
Canada (“ISCO Canada”) entered into that certain
Amendment to and Consent and Waiver under Loan Documents (the
“Consent and Waiver”) whereby the parties (i) issued
new Amended and Restated Notes to Alexander, (ii) amended,
consented to and waived certain provisions in that certain Third
Amended and Restated Loan Agreement dated as of November 10, 2004
(the “Loan Agreement”), and (iii) amended that certain
Fourth Amended and Restated Security Agreement dated June 22, 2006
and those certain Fourth Amended and Restated Guaranties dated as
of June 21, 2006; and
WHEREAS, subsequent to the date of the Consent and Waiver, each of
Spectral and ISCO Canada were dissolved under the laws of each
respective entity’s jurisdiction;
WHEREAS, on January 3, 2008, the Company issued to Alexander a New
Amended and Restated 7% Senior Secured Convertible Note (the
“Restated Note”);
WHEREAS, as of the date hereof, Alexander, the Company and
Manchester Securities Corp. entered into the First Amendment to
Note (the “Note Amendment”), pursuant to which certain
terms of the Restated Note were amended (the Restated Note together
with the Note Amendment shall be referred to herein as the
“New Amended and Restated Note”);
WHEREAS, also on the date hereof, the Company and Alexander entered
into the First Amendment to Registration Rights Agreement (the
“Registration Rights Amendment”), which amended certain
terms of the Registration Rights Agreement dated as of January 3,
2008; and
WHEREAS, concurrent with entrance into the Note Amendment and the
Registration Rights Amendment, the parties desire to amend the
Consent and Waiver to provide for certain changes as more fully set
forth herein.
A G R E E M E N T: NOW, THEREFORE, in consideration of the
covenants and agreements herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. All capitalized terms used herein
and not defined or amended herein shall have the meanings ascribed
to them in the Consent and Waiver.
2. Amendments. The Consent and Waiver shall be
amended as follows:
|
a)
|
The following shall be added to the end of Section 1:
|
“For purposes of this Agreement, all references to the New
Amended and Restated Note shall mean the New Amended and Restated
Note, as amended from time to time. The term “New
Conversion Shares,” as used in this Agreement, shall mean the
shares of the Company’s common stock underlying the New
Amended and Restated Note.”
|
b)
|
Replace Section 6(c) in its entirety with the following:
|
“Intentionally Omitted.”
|
c)
|
Replace Section 6(d) in its entirety with the following:
|
“The Company covenants to Alexander that upon issuance in
accordance with this Agreement, the Amendment to Loan Documents,
the Loan Agreement, and the terms of the New Amended and Restated
Note, the New Conversion Shares into which the New Amended and
Restated Note is convertible will be duly authorized, validly
|
