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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 11/12/13 Biolase, Inc 10-Q 9/30/13 65:8.2M ActiveDisclosure/FA |
Document/Exhibit Description Pages Size 1: 10-Q Quarterly Report HTML 543K 2: EX-4 Ex-4.2 HTML 65K 3: EX-4 Ex-4.3 HTML 63K 4: EX-10 Ex-10.4 HTML 47K 5: EX-31 Ex-31.1 HTML 27K 6: EX-31 Ex-31.2 HTML 28K 7: EX-32 Ex-32.1 HTML 21K 8: EX-32 Ex-32.2 HTML 22K 64: R1 Document and Entity Information HTML 41K 45: R2 Consolidated Balance Sheets HTML 136K 42: R3 Consolidated Balance Sheets (Parenthetical) HTML 48K 17: R4 Consolidated Statements Of Operations And HTML 105K Comprehensive Loss 44: R5 Consolidated Statements Of Cash Flows HTML 144K 31: R6 Basis of Presentation HTML 55K 57: R7 Recent Accounting Pronouncements HTML 30K 32: R8 Stock-Based Awards and Per Share Information HTML 222K 34: R9 Inventory HTML 37K 18: R10 Property, Plant, and Equipment HTML 53K 33: R11 Intangible Assets and Goodwill HTML 101K 56: R12 Accrued Liabilities and Deferred Revenue HTML 110K 52: R13 Lines Of Credit and Other Borrowings HTML 55K 43: R14 Commitments and Contingencies HTML 42K 61: R15 Segment Information HTML 56K 55: R16 Concentrations HTML 28K 15: R17 Income Taxes HTML 41K 20: R18 Subsequent Event HTML 22K 60: R19 Accounting Policies (Policies) HTML 114K 63: R20 Stock-Based Awards and Per Share Information HTML 192K (Tables) 65: R21 Inventory (Tables) HTML 34K 62: R22 Property, Plant, and Equipment (Tables) HTML 49K 47: R23 Intangible Assets and Goodwill (Tables) HTML 93K 19: R24 Accrued Liabilities and Deferred Revenue (Tables) HTML 116K 30: R25 Segment Information (Tables) HTML 47K 23: R26 Basis of Presentation - Additional Information HTML 67K (Detail) 22: R27 Classification of Compensation Expense Associated HTML 29K with Share-Based Payments (Detail) 36: R28 Assumptions Used in Estimating Fair Value of Stock HTML 32K Options Granted (Detail) 46: R29 Summary of Option Activity (Detail) HTML 72K 53: R30 Cash Proceeds Along with Fair Value Disclosures HTML 39K Related to grants Exercises and Vesting Options (Detail) 27: R31 Stock Based Awards and Per Share Information - HTML 115K Additional Information (Detail) 37: R32 Components of Inventory (Detail) HTML 32K 59: R33 Inventory - Additional Information (Detail) HTML 25K 25: R34 Summary of Property, Plant, and Equipment (Detail) HTML 36K 50: R35 Property, Plant, and Equipment - Additional HTML 22K Information (Detail) 51: R36 Intangible Assets Related to Accumulated HTML 52K Amortization and Goodwill (Detail) 38: R37 Intangible Assets and Goodwill - Additional HTML 24K Information (Detail) 21: R38 Components of Accrued Liabilities (Detail) HTML 43K 49: R39 Changes In Initial Product Warranty Accrual and HTML 38K Expenses Under Initial and Extended Warranties (Detail) 26: R40 Summary of Deferred Revenue (Detail) HTML 37K 35: R41 Lines of Credit and Other Borrowings - Additional HTML 111K Information (Detail) 54: R42 Commitments and Contingencies - Additional HTML 32K Information (Detail) 29: R43 Summary of Net Revenue by Geographic Location HTML 24K (Detail) 48: R44 Segment Information - Additional Information HTML 30K (Detail) 41: R45 Concentrations - Additional Information (Detail) HTML 31K 24: R46 Income Taxes - Additional Information (Detail) HTML 57K 58: R47 Subsequent Event - Additional Information (Detail) HTML 21K 40: XML IDEA XML File -- Filing Summary XML 91K 16: EXCEL IDEA Workbook of Financial Reports XLSX 134K 39: EXCEL IDEA Workbook of Financial Reports (.xls) XLS 1.26M 9: EX-101.INS XBRL Instance -- biol-20130930 XML 1.59M 11: EX-101.CAL XBRL Calculations -- biol-20130930_cal XML 132K 12: EX-101.DEF XBRL Definitions -- biol-20130930_def XML 710K 13: EX-101.LAB XBRL Labels -- biol-20130930_lab XML 998K 14: EX-101.PRE XBRL Presentations -- biol-20130930_pre XML 800K 10: EX-101.SCH XBRL Schema -- biol-20130930 XSD 161K 28: ZIP XBRL Zipped Folder -- 0001564590-13-001200-xbrl Zip 135K
Exhibit 10.4
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
This Amendment No. 4 to Loan and Security Agreement (“Amendment”) is made on November 8, 2013 (“Amendment No. 4 Effective Date”) between Biolase, Inc., a Delaware corporation (“Borrower”) and Comerica Bank, a Texas banking association (“Bank”).
Borrower and Bank entered into a Loan and Security Agreement dated May 24, 2012, as amended by Amendment No. 1 to Loan and Security Agreement dated August 6, 2012, Amendment No. 2 to Loan and Security Agreement dated May 7, 2013, and Amendment No. 3 to Loan and Security Agreement dated September 6, 2013 (“Loan Agreement”) providing terms and conditions governing certain loans and other credit accommodations extended by Bank to Borrower (“Obligations”). Borrower and Bank have agreed to amend the terms of the Loan Agreement as provided in this Amendment.
Accordingly, Borrower and Bank agree as follows:
1. |
Capitalized Terms. In this Amendment, capitalized terms that are used without separate definition shall have the meanings given to them in the Loan Agreement. |
2. |
Amendments. The Loan Agreement is amended as follows: |
(a) Section 6.7(a) is amended to read in its entirety as follows:
“(a) Liquidity.
(i) Liquidity Ratio. As of the end of each month, commencing with the month ending November 30, 2013, a ratio of (i) cash plus Eligible Accounts plus Eligible Ex-Im Accounts plus Inventory Reliance Amount to (ii) the outstanding principal amount of the Obligations, at not less than the following for the associated measurement dates:
Measurement Dates |
Liquidity Ratio |
November 30, 2103 and December 31, 2013 |
2.00:1.00 |
2.25:1.00 | |
February 28, 2014, and each succeeding month |
2.75:1.00 |
For this purpose, “Inventory Reliance Amount” means, on any date of determination, the sum of (1) the amount determined under part (b) of the Borrowing Base (being the portion attributable to Eligible Inventory) plus (2) the amount available to be borrowed under the Ex-Im Facility Loans based upon Eligible Export-Related Inventory as defined in the Ex-Im Facility Documents.
(ii) Liquid Assets. As of the end of each month, commencing with November 30, 2013, maintain Liquid Assets at not less than $1,000,000.00. ”
(a) Section 6.7(b) is amended to read in its entirety as follows:
“(b) EBITDA. As of the end of each fiscal quarter, commencing with the fiscal quarter ending December 31, 2013, an EBITDA of not less than the amount set forth below for the applicable measurement date, measured in each case for the three (3) months then-ending:
Measurement Date |
Minimum EBITDA |
-$500,000.00 | |
-$2,000,000.00 | |
-$2,000,000.00 | |
September 30, 2014 and thereafter |
[to be determined by Bank]” |
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(a) Section 6.12 is amended to read in its entirety as follows:
“6.12 Minimum Equity Event. Borrower shall receive New Equity totaling at least $3,000,000.00 after November 8, 2013, and before March 1, 2014.”
(b) Exhibit A is amended to add the following term and its definition in appropriate alphabetical order:
“Liquid Assets” means cash, cash equivalents, and readily marketable securities which are not subject to any security interest, lien or encumbrance.
(d) Exhibit E (the form of Compliance Certificate) is amended entirely to be in the form of attached Amended Exhibit E.
3. |
Representations. Borrower represents and agrees that: |
(a) Except as expressly modified in this Amendment, (i) the representations and warranties set forth in the Loan Agreement and in each of the Loan Documents remain true and correct in all respects, except to the extent that they expressly speak as of a specific prior date, and (ii) the covenants set forth in the Loan Agreement continue to be satisfied in all respects, and are legal, valid and binding obligations with the same force and effect as if entirely restated in this Amendment.
(b) When executed, this Amendment will be a duly authorized, legal, valid, and binding obligation of Borrower enforceable in accordance with its terms, and will not conflict with or violate any of Borrower’s organization documents or any agreement, instrument, law, or order to which Borrower or any material portion of its assets is subject or bound.
(c) The corporate resolutions delivered to Bank on or about May 24, 2012 remain in full force and effect, have not been amended, repealed or rescinded in any respect and may continue to be relied upon by Bank until written notice to the contrary is received by Bank, the officers named therein continue to hold those offices, and Borrower continues to be in good standing under the laws of the State of Delaware.
(d) Except for events or conditions for which Bank has given or is concurrently giving its written waiver, no Event of Default exists or has occurred and is continuing uncured or unwaived as of the Effective Date.
4. Waiver. Borrower acknowledges that it is not in compliance with the Loan Agreement because it has failed to comply with Section 6.7(b) [EBITDA] as of September 30, 2013 (“Identified Non-Compliance”). Bank waives any default or Event of Default under the Loan Agreement arising out of the Identified Non-Compliance as of the stated date, but not at or for any subsequent time or period, provided, however, that if Borrower fails to comply with any of the provisions of Section 6.7 as of December 31, 2013 (a “2013 FYE Financial Covenant Default”) without limiting or restricting any other right or remedy that Bank may have in that event:
(a) Borrower will be obligated to pay Bank a default fee equal to the rate of interest that would have been applicable to the Revolving Line following the Identified Default minus the interest actually accrued and paid on the outstanding amount of the Revolving Line for the period from October 1, 2013, through December 31, 2013 (being 5.00% multiplied by the daily average outstanding amount under the Revolving Line during that period multiplied by 92 and divided by 360), such default fee to be payable on Bank’s demand; and
(b) Effective on January 1, 2014, the outstanding amounts of the Revolving Line will bear interest at the rate applicable thereto after the occurrence of an Event of Default.
This provision is not a waiver of or consent to any other event, condition, transaction, act or omission whether related or unrelated to the Identified Non-Compliance, and the Bank does not intend to waive or consent to any subsequent defaults by Borrower for failure to company with Section 6.7(b) of the Loan Agreement.
5. Conditions Precedent. The effectiveness of this Amendment is subject to Bank’s receipt of or Borrower’s satisfaction of all of the following:
(a) this Amendment;
(b) execution and delivery by the Guarantors of the Acknowledgement and Consent of Guarantors as set forth below;
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(c) execution and delivery by Borrower of a Warrant in favor Bank for the purchase of 100,000 shares of Borrower’s common stock with a term of five years and an exercise price of $2.00 per share.
(d) payment of an amendment fee of $10,000.00; and
(e) such other documents and completion of such other matters as Bank may reasonably deem necessary or appropriate.
6. No Other Changes. Except as specifically provided in this Amendment, it does not vary the terms and provisions of any Loan Documents. This Amendment shall not impair the rights, remedies, and security given in and by the Loan Documents. The terms of this Amendment shall control any conflict between its terms and those of the Loan Agreement.
7. Ratification. Except for the modifications under this Amendment, the parties ratify and confirm the Loan Agreement and the Loan Documents and agree that they remain in full force and effect.
8. Further Modification; No Reliance. This Amendment may be altered or modified only by written instrument duly executed by Borrower and Bank. In executing this Amendment, Borrower is not relying on any promise or commitment of Bank that is not in writing signed by Bank. This Amendment shall not be more strictly construed against any one of the parties as compared to any other.
9. Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
10. Governing Law. The parties agree that the terms and provisions of this Amendment shall be governed by and construed in accordance with the internal laws of the State of California, without regard to principles of conflicts of law.
11. No Defenses. Borrower acknowledges, confirms, and warrants to Bank that as of the date hereof Borrower has absolutely no defenses, claims, rights of set-off, or counterclaims against Bank under, arising out of, or in connection with, this Amendment, the Loan Agreement, the Loan Documents and/or the individual advances under the Indebtedness, or against any of the indebtedness evidenced or secured thereby.
12. Expenses. Borrower shall promptly pay all reasonable and actually incurred out-of-pocket fees, costs, charges, expenses, and disbursements of Bank incurred in connection with the preparation, execution, and delivery of this Amendment, and the other documents contemplated by this Amendment.
13. Counterparts. This Amendment may be executed in one or more counterparts, and by separate parties on separate counterparts, all of which shall constitute one and the same agreement.
[end of amendment—signature page follows]
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21,677,669.3\125055-01016
This Amendment No. 4 to Loan and Security Agreement is executed and delivered as of the Amendment No. 4 Effective Date.
Comerica Bank By: /s/ Lake T. McGuire Name: Lake T. McGuire Title: Vice President |
Biolase, Inc. By: /s/ Frederick D. Furry Name: Frederick D. Furry Title: Chief Financial Officer |
Acknowledgement and Consent of Guarantors
Each of the undersigned has guaranteed the payment and performance of the Obligations by Borrower pursuant to Guaranty dated May 24, 2012. Each of the undersigned (a) acknowledges and consents to the execution, delivery and performance of the foregoing Amendment No. 4 to Loan and Security Agreement, and (b) agrees that (i) its guaranty remains in full force and effect and (ii) it has absolutely no defenses, claims, rights of set-off, or counterclaims against Bank under, arising out of, or in connection with, the foregoing Amendment No. 4 to the Loan and Security Agreement, the Loan Agreement, its guaranty, or the other Loan Documents. Each of the undersigned further represents that it is in compliance with all of the terms and conditions of its guaranty.
Dated as of November 8, 2013.
BL II Acquisition Inc.
By: /s/ Frederick D. Furry Name: Frederick D. Furry Title: Chief Financial Officer |
BL Acquisition Corp.
By: /s/ Frederick D. Furry Name: Frederick D. Furry Title: Chief Financial Officer |
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21,677,669.3\125055-01016
This ‘10-Q’ Filing | Date | Other Filings | ||
---|---|---|---|---|
9/30/14 | 10-Q, CORRESP, UPLOAD | |||
6/30/14 | 10-Q, 8-K | |||
3/31/14 | 10-Q | |||
3/1/14 | ||||
2/28/14 | 8-K, 8-K/A | |||
1/31/14 | 4 | |||
1/1/14 | ||||
12/31/13 | 10-K, 10-K/A, SD | |||
11/30/13 | ||||
Filed on: | 11/12/13 | 8-K | ||
11/8/13 | ||||
10/1/13 | SC 13G | |||
For Period end: | 9/30/13 | |||
9/6/13 | 8-K, 8-K/A | |||
5/7/13 | 8-K | |||
8/6/12 | ||||
5/24/12 | 8-K | |||
List all Filings |