SUPPLEMENT

This is a Supplement identified in the document entitled Loan and Security Agreement dated as of June 29, 2011, as the same may be amended, restated, supplemented and modified from time to time (the “Loan and Security Agreement”), by and between Borrower and Lender.  All capitalized terms used in this Supplement and not otherwise defined in this Supplement have the meanings ascribed to them in Article 10 of the Loan and Security Agreement, which is incorporated in its entirety into this Supplement.  In the event of any inconsistency between the provisions of that document and this Supplement, this Supplement is controlling.

In addition to the provisions of the Loan and Security Agreement, the parties agree as follows:

Part 1. - Additional Definitions:

“Commitment” Subject to the terms and conditions set forth in the Loan and Security Agreement and this Supplement, Lender commits to make Growth Capital Loans to Borrower up to the aggregate original principal amount of Two Million Five Hundred Thousand Dollars ($2,500,000).  The Commitment shall be divided into two tranches in the following amounts:  (i) One Million Five Hundred Thousand Dollars ($1,500,000), which shall be referred to herein as the “First Tranche” of the Commitment; and (ii) One Million Dollars ($1,000,000), which shall be referred to herein as the “Second Tranche” of the Commitment.

“Designated Rate”:  The Designated Rate for each Loan shall be a fixed rate of interest per annum equal to the Prime Rate as published on the Business Day on which Lender prepares the Note for such Loan, plus six and three-quarters of one percent (6.75%); provided, however, that in no event shall the Designated Rate for a Loan be less than ten percent (10.00%).

“Final Payment”: Each Growth Capital Loan shall have a Final Payment equal to seven and 767/1000 percent (7.767%) of the original principal amount of such Growth Capital Loan.

“Growth Capital Loan” means any Loan requested by Borrower and funded by Lender under its Commitment for general corporate purposes of Borrower.  Growth Capital Loans are sometimes referred to herein individually as a “Loan” or collectively as “Loans”.

“Interest-Only Rate”:  The Interest-Only Rate for each Loan shall be a fixed rate of interest per annum equal to ten percent (10.00%).

“Interim Rate”:  The Interim Rate for each Loan shall be a fixed rate of interest per annum equal to thirteen percent (13.00%).

“Loan Commencement Date” means, with respect to a Loan, (i) the first day of the first full calendar month following the Borrowing Date of such Loan if such Borrowing Date is not the first day of a month; or (ii) the same day as the Borrowing Date if the Borrowing Date is the first day of a month.

“Prime Rate” means the “prime rate” of interest, as published from time to time by The Wall Street Journal in the “Money Rates” section of its Western Edition newspaper.

 

“Termination Date”: The Termination Date is the earlier of (i) the date Lender may terminate making Loans or extending other credit pursuant to the rights of Lender under Article 7 of the Loan and Security Agreement, or (ii) (A) with respect to the First Tranche of the Commitment, the earlier of (x) two (2) Business Days following the Closing Date or (y) June 30, 2011; and (B) with respect to the Second Tranche of the Commitment, November 30, 2011.

“Threshold Amount” means Fifty Thousand Dollars ($50,000).

Part 2. - Additional Covenants and Conditions:

1.         Growth Capital Loan Facility.

(a)           Funding of Growth Capital Loan under First Tranche of Commitment. Subject to the terms and conditions of the Loan and Security Agreement and this Supplement, Lender agrees to make a Growth Capital Loan to Borrower under the First Tranche of the Commitment from the Closing Date up to and including the applicable Termination Date in an original principal amount equal to but not exceeding the First Tranche of the Commitment.

(b)           Funding of Growth Capital Loan under Second Tranche of Commitment; Additional Condition Precedent Regarding Second Tranche.  In addition to the satisfaction of all the other conditions precedent specified in Article 4.2 of the Loan and Security Agreement and this Supplement, Lender’s obligation to fund the Growth Capital Loan under the Second Tranche of the Commitment is subject to receipt by Lender of evidence satisfactory to it, as determined by Lender in its reasonable judgment, that Borrower has achieved certain financial milestones, as determined by  Borrower and Lender on the date hereof (the “Second Tranche Milestone”).  Subject to the foregoing and the other conditions precedent specified in Article 4.2 of the Loan and Security Agreement and this Supplement, Lender agrees to make a Growth Capital Loan to Borrower under the Second Tranche of the Commitment on from and after the date Borrower satisfies the Second Tranche Milestone up to and including the applicable Termination Date in an original principal amount equal to but not exceeding the Second Tranche of the Commitment.

(c)           Minimum Funding Amount; Maximum Number of Borrowing Requests.  Except to the extent the remaining Commitment is a lesser amount, each Growth Capital Loan requested by Borrower to be made on a single Business Day shall be for a minimum original principal amount of One Hundred Thousand Dollars ($100,000).  Borrower shall not submit a Borrowing Request more frequently than once each month.

(d)           Repayment of Growth Capital Loans.  Principal of and interest on each Growth Capital Loan shall be payable as set forth in a Note evidencing such Loan (substantially in the form attached hereto as Exhibit “A”), which Note shall provide substantially as follows:  principal and interest at the Designated Rate shall be fully amortized over a period of thirty (30) months in equal, monthly installments, commencing after a nine (9) month period of interest-only payments at the Interest-Only Rate.  In particular, on the Borrowing Date applicable to such Growth Capital Loan, Borrower shall pay to Lender:  (i) if the Borrowing Date is earlier than the Loan Commencement Date, interest only at the Interim Rate, in advance, on the outstanding principal balance of the Growth Capital Loan for the period from the Borrowing Date through the last day of the calendar month in which such Borrowing Date occurs, and (ii) a first (1st) interest only installment at the Interest-Only Rate, in advance, on the outstanding principal balance of the Note for the ensuing month.  Commencing on the first day of the second full month after the Borrowing Date and continuing on the first day of the third, fourth, fifth, sixth, seventh, eighth and ninth full months after the Borrowing Date, Borrower shall pay interest at the Interest-Only Rate, in advance, on the outstanding principal balance of the Loan evidenced by such Note for the ensuing month.  Commencing on the first day of the tenth full month after the Borrowing Date and continuing on the first day of each consecutive calendar month thereafter, principal and interest at the Designated Rate shall be payable, in advance, in 30 equal consecutive monthly installments.  Borrower shall pay the Final Payment to Lender on the date on which the final amortization payment is due and payable.  For purposes of illustration and not of limitation, attached hereto as Exhibit “H” is an Amortization Schedule that describes the repayment term of the Loan based upon the facts set forth therein for purposes of such illustration.

2.         Prepayment of Loans.  No Loan may be voluntarily prepaid except as provided in this Section 2.  Borrower may voluntarily prepay all, but not less than all, Loans in whole, but not in part, at any time by tendering to Lender cash payment in respect of such Loans in an amount equal to the sum of:  (i) all accrued and unpaid interest on such Loans as of the date of prepayment; (ii) all outstanding principal balances of such Loans as of the date of prepayment; (iii) the undiscounted Final Payment(s); and (iv) an amount equal to the total amount of all of the interest that would have accrued and been payable from the date of prepayment through the stated maturity of the Loans had they remained outstanding and been paid in accordance with the terms of the related Note(s).

3.         Forbearance of Exercise of Remedies Against Intellectual Property.

(a)           Notwithstanding anything to the contrary contained in Article 7 and 8 of the Loan and Security Agreement or elsewhere in the Loan Documents (including the Intellectual Property Security Agreement executed and delivered by Borrower pursuant to Section 4.1(m) of the Loan and Security Agreement), following the occurrence and during the continuance of an Event of Default, other than an Event of Default under Section 7.1(c)(ii) or an Event of Default under Section 7.1(f) of the Loan and Security Agreement, Lender agrees to forbear from selling, leasing, licensing or otherwise disposing of any Collateral comprising Intellectual Property (“Intellectual Property Collateral”) for a period of up to sixty (60) days after the occurrence of such Event of Default (such period being referred to herein as a “Forbearance Period”), provided that at all times during the Forbearance Period:

(i)            Borrower shall continue to have a duly constituted and acting board of directors, and executive management actively involved in Borrower’s operations who have not resigned their positions;

(ii)           Borrower is able to demonstrate to Lender that Borrower is exercising on a continuous and diligent basis reasonable commercial efforts to resolve such Event of Default or consummate a financing or other transaction that will enable it to satisfy and discharge its Obligations to Lender;

(iii)          Borrower shall cooperate with Lender in its exercise of rights under Section 5.9(a) of the Loan and Security Agreement;

(iv)          No Insolvency Proceeding is commenced by or against Borrower; and

(v)           No Person who holds or acquires a Lien on or against all or any material portion of the Intellectual Property Collateral actually exercises foreclosure or similar remedies against such property.

Subject to paragraph (b) below, upon the non-occurrence of any of the events under clauses (i) through (v) above, the Forbearance Period shall immediately and automatically terminate and Lender may thereupon commence, continue and complete any exercise of its rights and remedies against Intellectual Property Collateral, all as provided in the Loan Documents and under applicable law.

(b)           If during the Forbearance Period, Lender proposes or arranges a private or public sale of all or a material portion of the Intellectual Property Collateral (which sale shall not be consummated during the Forbearance Period), Lender shall give notice of such proposed sale to Borrower, including notice of the minimum price to be paid or bid in such sale.  If Borrower’s Board of Director determines in good faith that the proposed sale would not be commercially reasonable, then Borrower may, within five (5) Business Days of receipt of the initial notice from Lender, deliver a written objection, following which the parties agree to meet promptly and to confer in good faith to resolve any disagreements as to value or the proposed sale.  Unless the parties have otherwise agreed as a result of such meet-and-confer, Borrower shall obtain, at its sole expense, within thirty (30) days after the initial notice from Lender, a written appraisal of the orderly liquidation value of the Intellectual Property, prepared by a recognized, independent appraiser with experience evaluating similar types of property (in which event, the 60-day limitation on the Forbearance Period shall be extended if, and only as, necessary to afford Borrower the full thirty (30) days to obtain such appraisal).  If such appraisal is not timely delivered, or if the value concluded by the independent appraisal is not more than one hundred twenty percent (120%) of the minimum price or bid in any transaction proposed by Lender for the same Intellectual Property Collateral, then Lender may proceed with the proposed transaction (but not sooner than 60 days after the occurrence of an Event of Default unless Borrower approves otherwise) on price terms not materially more favorable to the transferee than originally proposed by Lender.  If the value concluded by the independent appraisal is more than one hundred twenty percent (120%) of the minimum price or bid in any transaction proposed by Lender, then the 60-day limitation on the Forbearance Period (as may have been extended for the appraisal as aforesaid) shall be extended and the parties shall cooperate with one another to realize the higher valuation, provided that if the Forbearance Period (as so extended) terminates for any reason other than that set forth in clause (ii) of paragraph (a) above, Lender may thereupon commence, continue and complete any exercise of its rights and remedies against Intellectual Property Collateral, all as provided in the Loan Documents and under applicable law, and in all events, Lender shall be free to enforce such rights and remedies and complete one or more sales or other dispositions of the Intellectual Property after the earlier of (i) one hundred twenty (120) days after the occurrence of the Event of Default, or (ii) sixty (60) days after the delivery of the appraisal report to Borrower.

(c)           At any time during the Forbearance Period, Lender will discontinue and forbear from enforcing its rights and remedies against the Collateral upon tender to Lender by Borrower or by another Person for its account all amounts payable under Section 2 of Part 2 hereunder.

4.         Issuance of Warrants.  As additional consideration for the making of the Commitment, Lender has earned and is entitled to receive immediately upon the execution of the Loan and Security Agreement and this Supplement, warrant instruments issued by Borrower substantially in the forms attached hereto as Exhibit “D-1”, Exhibit “D-2” and Exhibit “D-3” (the “Warrants”).  Borrower acknowledges that Lender has assigned its rights to receive the Warrants to its parent, Venture Lending & Leasing VI, LLC (“LLC”).  In connection therewith, Borrower shall issue the Warrants directly to LLC.  Upon request of Borrower, Lender shall furnish to Borrower a copy of the agreement in which Lender assigned its rights to receive the Warrants to LLC

5.         Commitment Fee.  As an additional condition precedent under Section 4.1 of the Loan and Security Agreement, Lender shall have completed to its satisfaction its due diligence review of Borrower’s business and financial condition and prospects and Lender’s investment committee shall have approved its Commitment.  If this condition is not satisfied, the Twenty Five Thousand Dollar ($25,000) commitment fee (the “Commitment Fee”) previously paid by Borrower shall be refunded.  Lender agrees that with respect to each Loan advanced by it under the Commitment, on the Borrowing Date applicable to such Loan, Lender shall credit against the payments due from Borrower on such date in respect of such Loan an amount equal to the product of Twenty Five Thousand Dollars ($25,000) and a fraction, the numerator of which is the principal amount of such Loan and the denominator of which is Two Million Five Hundred Thousand Dollars ($2,500,000), until the aggregate amount of such credits equals but does not exceed Twenty Five Thousand Dollars ($25,000).  Except as set forth in this section, the Commitment Fee is not refundable.

6.         Documentation Fee Payment.  Pursuant to Section 9.8(a) of the Loan and Security Agreement Borrower shall pay Lender, on demand, the total amount of Lender’s actual costs and expenses incurred in connection with the preparation and negotiation of the Loan Documents, including reasonable legal fees not to exceed $15,000 and Lender’s actual costs and filing fees related to perfection of its Liens in the United States and abroad.

7.         Borrower’s Account and Wire Transfer Instructions.  Borrower’s Primary Operating Account and Wire Transfer Instructions shall be provided to Lender on or prior to the Closing Date.

8.         Debits to Account for ACH Transfers.  For purposes of Section 2.2 and 5.10 of the Loan and Security Agreement, Borrower’s Primary Operating Account shall be the bank account set forth in Section 7 above.  Borrower hereby agrees that Loans will be advanced to the account specified above and regularly scheduled monthly payments of principal and interest and any Final Payments will be automatically debited from the same account.

Part 3. - Additional Representations:

Borrower represents and warrants that as of the Closing Date and each Borrowing Date:

a)

Its chief executive office is located at: 1129 North McDowell Boulevard, Petaluma, CA 94954.

b)

Its Equipment is located at:  1129 North McDowell Blvd., Petaluma, CA 94954

c)

Its Records are located at:  1129 North McDowell Blvd., Petaluma, CA 94954

d)

Its Inventory is located at 1129 North McDowell Blvd., Petaluma, CA 94954, and at various distributor warehouse sites and at the Borrowers’ premises, as referenced below.

e)

In addition to its chief executive office, Borrower maintains offices or operates its business at the following locations:

Aquamed Technologies

1129 N. McDowell Blvd.

Petaluma, CA 94954

USA

MicroMed Laboratories, Inc.

1129 N. McDowell Blvd.

Petaluma, CA 94954

USA

L3 Pharmaceuticals, Inc.

1129 N. McDowell Blvd.

Petaluma, CA 94954

USA

Oculus Technologies of Mexico S.A. de C.V.

Industria Vidriera 81 de la Calle

Fracc Industrial Zapopan Norte

Zapopan, Jalisco

México

45130 (manufacturing and administration)

Pedro Martinez Rivas 861

Parque Industrial Belenes Norte

Zapopan, Jalisco

México

45150 (warehouse)

IN WITNESS WHEREOF, the parties have executed this Supplement as of the date first above written.

The undersigned (“Borrower”) promises to pay to the order of VENTURE LENDING & LEASING VI, INC., a Maryland corporation (“Lender”) at its office at 2010 North First Street, Suite 310, San Jose, California 95131, or at such other place as Lender may designate in writing, in lawful money of the United States of America, the principal sum of ______________________________ Dollars ($__________), with interest thereon from the date hereof until maturity, whether scheduled or accelerated, at a fixed rate per annum equal to [the Prime Rate as published on the Business Day on which Lender prepares this Note plus 6.75%, but in no event less than 10.00%] (the “Designated Rate”), except as otherwise provided herein, according to the payment schedule described herein, and a Final Payment in the sum of [7.767% of face amount] Dollars ($____________) payable on the date set forth below.

This Note is one of the Notes referred to in, and is entitled to all the benefits of, a Loan and Security Agreement dated as of  June 29, 2011, between Borrower and Lender (as amended, restated and supplemented from time to time, the “Loan Agreement”).  Each capitalized term not otherwise defined herein shall have the meaning set forth in the Loan Agreement.  The Loan Agreement contains provisions for the acceleration of the maturity of this Note upon the happening of certain stated events.

Principal of and interest on this Note shall be payable as follows:

On the Borrowing Date, Borrower shall pay [(i) if the Borrowing Date is not the first day of the month:  interest only at a fixed rate per annum equal to 13.00%, in advance, on the outstanding principal balance of this Note for the period from the Borrowing Date through    [the last day of the same month]___; and (ii)] interest only at a fixed rate per annum equal to 10.00% (the “Interest-Only Rate”), in advance, on the outstanding principal balance of this Note in the amount of $_____________ for the month of [date of first regular interest only installment].

Commencing on the first day of the second full month after the Borrowing Date, and continuing on the first day of each of the third, fourth, fifth, sixth, seventh, eighth and ninth months thereafter, Borrower shall make payments, in advance, of interest only at the Interest-Only Rate on the outstanding principal balance of this Note in the amount of $_____________ each.

Commencing on [the first day of the tenth full month after the Borrowing Date], and continuing on the first day of each consecutive month thereafter, principal and interest at the Designated Rate shall be payable, in advance, in thirty (30) equal consecutive installments of _________________________________ Dollars ($__________) each.  The Final Payment and any unpaid expenses, fees, interest and principal shall be due and payable on          [same date of the last amortized payment].

This Note may be voluntarily prepaid only as permitted under Section 2 of Part 2 of the Supplement to the Loan Agreement.

Any unpaid payments of principal or interest on this Note shall bear interest from their respective maturities, whether scheduled or accelerated, at a rate per annum equal to the Default Rate.  Borrower shall pay such interest on demand.

Interest, charges and fees shall be calculated for actual days elapsed on the basis of a 360-day year, which results in higher interest, charge or fee payments than if a 365-day year were used.  In no event shall Borrower be obligated to pay interest, charges or fees at a rate in excess of the highest rate permitted by applicable law from time to time in effect.

If Borrower is late in making any payment under this Note by more than five (5) business days, Borrower agrees to pay a “late charge” of five percent (5%) of the installment due, but not less than fifty dollars ($50.00) for any one such delinquent payment.  This late charge may be charged by Lender for the purpose of defraying the expenses incidental to the handling of such delinquent amounts.  Borrower acknowledges that such late charge represents a reasonable sum considering all of the circumstances existing on the date of this Note and represents a fair and reasonable estimate of the costs that will be sustained by Lender due to the failure of Borrower to make timely payments.  Borrower further agrees that proof of actual damages would be costly and inconvenient.  Such late charge shall be paid without prejudice to the right of Lender to collect any other amounts provided to be paid or to declare a default under this Note or any of the other Loan Documents or from exercising any other rights and remedies of Lender.

This Note shall be governed by, and construed in accordance with, the laws of the State of California without reference to its conflict of laws principles.

[Date]

 

Venture Lending & Leasing VI, Inc.

2010 North First Street, Suite 310

San Jose, CA 95131

Re:

Oculus Innovative Sciences, Inc.

Ladies and Gentlemen:

The undersigned is the _____________________ of the Company, and hereby requests on behalf of the Company a Loan under the Loan Agreement, and in that connection certifies as follows:

1.           The amount of the proposed Loan is ___________________________ and __/100 Dollars ($______________).  The Borrowing Date of the proposed Loan is ___________ __, 200___.

 

2.           [If this Growth Capital Loan is the Loan to be financed under the Second Tranche of the Commitment].  The proposed Growth Capital Loan is the Loan to be financed under the Second Tranche of the Commitment.  Accordingly, the Company has demonstrated to VLL, and hereby represents and warrants, that the Company has achieved the Second Tranche Milestone (as defined in Section 1(b) of Part 2 of the Supplement).

3.           As of this date, no Default or Event of Default has occurred and is continuing, or will result from the making of the proposed Loan, the representations and warranties of the Company contained in Article 3 of the Loan Agreement and Part 3 of the Supplement are true and correct in all material respects, and the applicable conditions precedent described in Article 4 of the Loan Agreement and Part 2 of the Supplement have been met.

4.           No event has occurred that has had or could reasonably be expected to have a Material Adverse Change.

5.           The Company’s most recent financial projections or business plan dated ____________, as approved by the Company’s Board of Directors on _______________, are enclosed herewith in the event such financial projections or business plan have not been previously provided to VLL.

 

The Company shall notify you promptly before the funding of the Loan if any of the matters to which I have certified above shall not be true and correct on the Borrowing Date.

Venture Lending & Leasing VI, Inc.

2010 North First Street, Suite 310

San Jose, CA 95131

Re:          Oculus Innovative Sciences, Inc.

Ladies and Gentlemen:

Reference is made to the Loan and Security Agreement dated as of June 29, 2011 (as the same have been and may be supplemented, amended and modified from time to time, the “Loan Agreement,” the capitalized terms used herein as defined therein), between Venture Lending & Leasing VI, Inc. (“Lender”) and Oculus Innovative Sciences, Inc. (the “Company”).

The undersigned authorized representative of the Company hereby certifies in such capacity that in accordance with the terms and conditions of the Loan Agreement, (i) no Default or Event of Default has occurred and is continuing, except as noted below, and (ii) the Company is in complete compliance for the financial reporting period ending ___________ with all required financial reporting under the Loan Agreement, except as noted below.  Attached herewith are the required documents supporting the foregoing certification.  The undersigned further certifies that the accompanying financial statements have been prepared in accordance with the Company’s past practices applied on a consistent basis throughout the periods indicated.  The financial statements fairly present in all material respects the financial condition and operating results of the Company and its subsidiaries as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustments, except as explained below.

Pursuant to Section 6.11 of the Loan Agreement, Company represents and warrants that: (i) as of the date hereof, it maintains only those deposit and investment accounts set forth below; and (ii) a control agreement has been executed and delivered to Lender with respect to each such account [Note: If the Company has established any new account(s) since the date of the last compliance certificate, please so indicate].

Pursuant to Section 5.9(e) of the Loan Agreement, the Company represents and warrants that: (i) as of the date hereof, tangible Collateral is located at the addresses set forth below; and (ii) a Waiver has been executed and delivered to Lender with respect to each such location at which the value of the Collateral located there is greater than $200,000 [Note: If the Company has located Collateral at any new location since the date of the last compliance certificate, please so indicate].