Second Amendment to Loan and Security Agreement, dated as of March 17, 2020, by and between Berkeley Lights, Inc. and East West Bank
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (this Amendment) is entered into as of March 17, 2020, by and between EAST WEST BANK (Bank) and BERKELEY LIGHTS, INC. (Borrower).
Borrower and Bank are parties to that certain Loan and Security Agreement dated as of May 23, 2018 (the Agreement). The parties desire to amend the Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The following defined terms and their respective definitions in Exhibit A of the Agreement are hereby deleted in their entirety:
Amortization Date; First Extended Interest-Only Period: Second Extended Interest-Only Period
2. Section 2.1 (b)(ii) of the Agreement is hereby amended and restated in its entirety to read as follows:
(ii) Interest shall accrue from the date the Term Loan is made at the rate specified in Section 2.3(a), and shall be payable monthly on the 23rd day of each month commencing on 23rd day of the first month after the Term Loan is made. The Term Loan shall be repaid in twelve (12) equal monthly installments of principal plus accrued but unpaid interest, commencing on June 23, 2021 and continuing on the same day of each month thereafter through the Term Loan Maturity Date, at which time all outstanding amounts owing under this Section 2.1(b) shall be immediately due and payable. The Term Loan, once repaid, may not be reborrowed. Borrower may prepay the Term Loan without penalty or premium.
3. No course of dealing on the part of Bank or its officers, nor any failure or delay in the exercise of any right by Bank, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later exercise of any such right. Banks failure at any time to require strict performance by Borrower of any provision shall not affect any right of Bank thereafter to demand strict compliance and performance. Any suspension or waiver of a right must be in writing signed by an officer of Bank.
4. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof.
5. Borrower represents and warrants that the Representations and Warranties contained in the Agreement are true and correct in all material respects as of the date of this Amendment, and that no Event of Default has occurred and is continuing.
6. As a condition to the effectiveness of this Amendment (other than representations and warranties which relate to an earlier date), Bank shall have received, in form and substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by Borrower;
(b) all reasonable Bank Expenses, consisting of attorneys fees and expenses, incurred through the date of this Amendment, which may be debited from any of Borrowers accounts; and
(c) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.
7. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Amendment. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a .pdf format data file, such signature shall create a valid and binding obligation of the party executing this Amendment (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original hereof.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.
|BERKELEY LIGHTS, INC.|
|By:||/s/ Shaun Holt|
|EAST WEST BANK|
|By:||/s/ James Tai|
|Title:||Managing Director/Head of Life Sciences|
[Signature Page to Second Amendment to Loan and Security Agreement]