Attached files
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| 8-K - Inotiv, Inc. | v206887_8k.htm |
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
This
Amendment (“Amendment”)
to Loan and Security Agreement is dated December 23, 2010 and entered
into by and between Entrepreneur Growth Capital LLC (“Lender”), and Bioanalytical
Systems, Inc. (“Borrower”).
WHEREAS, Lender and Borrower
have entered into a Loan and Security Agreement, as may have been amended from
time to time (the “Loan
Agreement”) dated on or about January 11, 2010; and
WHEREAS, Borrower has
requested that Lender waive compliance and to also permanently re-set the
tangible net worth covenant for future periods; and
WHEREAS, Lender has agreed to
waive Borrower’s
compliance to meet the tangible net worth covenant and to also permanently
re-set the tangible net worth covenant for future periods.
NOW, THEREFORE, in
consideration of the mutual conditions and agreements set forth in the Loan
Agreement and this Amendment, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
I. DEFINITIONS
A.
Definitions.
Capitalized terms used in this Amendment, to the extent not otherwise defined
herein, shall have the same meanings as in the Loan Agreement, as amended
hereby.
II. AMENDMENTS
AND AGREEMENTS
A. Amendment to Section 4.15,
Net Worth Covenant. Section 4.15 shall be, and the same is hereby amended
by re-stating the tangible net worth covenant to be not less than
$8,500,000.00.
B. Waiver. Lender hereby
waives Borrower's compliance with the tangible net worth covenant for all
periods up to and including the date of this Amendment.
C. Amendment to Section 7.1,
Term. Section 7.1 shall be, and the same is hereby amended by restating
the first sentence of Section 7.1 to modify the definition of Initial Term to be
the last day of the month, three (3) years from the original date of the Loan
Agreement (i.e., January 31, 2013). Accordingly, the first sentence of Section
7.1 shall be restated to read as follows:
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“This
Agreement shall become effective upon acceptance by Lender and shall continue in
full force and effect for a term ending on the last business day of the month,
three (3) years from the date hereof (the “Initial Term”) and shall
automatically renew from year to year thereafter (each, a “Renewal Term”) until
terminated pursuant to the terms hereof.”
III. MISCELLANEOUS
A.
Conditions. The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent (unless specifically waived in writing by
Lender):
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(i)
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there
shall have occurred no material adverse change in the business,
operations, financial conditions, profits or prospects, or in the
Collateral of the Borrower;
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(ii)
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Borrower
shall have executed and delivered such other documents and instruments as
Lender may require;
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(iii)
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Borrower
shall have paid Lender a fee in the amount of $1,000.00 as consideration
for the consent and execution of the Amendment, plus a documentation fee
in the amount of $500.00, which fees shall automatically be charged to
Borrower’s loan account upon the execution of this
Amendment.
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(iv)
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all
corporate proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other
legal matters incident thereto shall be satisfactory to Lender and its
legal counsel.
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B. Ratification. The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Loan Agreement and, except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Loan Agreement, are ratified and confirmed and shall continue in full force
and effect.
C. Corporate Action. The
execution, delivery and performance of this Amendment have been authorized by
all requisite corporate action on the part of Borrower and will not violate the
Articles of Incorporation or Bylaws of Borrower.
D. Severability. Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
E. Successors and
Assigns. This Amendment is binding upon and shall inure to the benefit of
Lender and Borrower and their respective successors and
assigns.
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F. Counterparts. This
Amendment may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument. An executed facsimile of this
Amendment shall be deemed to be a valid and binding agreement between the
parties hereto.
IN WITNESS WHEREOF, the
parties have executed this Amendment on the date first above
written.
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ENTREPRENEUR
GROWTH CAPITAL LLC,
as
Lender
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By:
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/s/ Charles L. Bert
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Name:
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Charles
L. Bert
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Title:
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Vice
President,
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BIOANALYTICAL
SYSTEMS, INC.,
as
Borrower
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By:
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/s/ Michael R. Cox
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Name:
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Michael
R. Cox
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Title:
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Vice
President - Finance
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