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AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
a Delaware Corporation
LEWIS C. PELL
DATED: AS OF SEPTEMBER 30, 2011
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
THIS AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (as it may be amended, restated or modified from time to time, this “Agreement”), is dated as of September 30, 2011, between Vision-Sciences, Inc. , a Delaware Corporation (“Borrower”), and Lewis C. Pell, or his assigns (“Lender”).
W I T N E S S E T H
WHEREAS , pursuant to that certain Revolving Loan Agreement, dated as of November 9, 2009, between Borrower and Lender, Lender agreed to advance Funds to Borrower in the maximum principal amount of five million and 00/100 ($5,000,000.00) dollars (the “Original Loan”), subject to and upon the terms and conditions therein contained, which Original Loan is evidenced by that certain Promissory Note dated as of November 9, 2009, from Borrower to Lender;
WHEREAS , Borrower has requested that Lender agree to advance additional funds to Borrower on a revolving basis in the maximum principal amount, together with the Original Loan, of TEN MILLION and 00/100 ($10,000,000.00) DOLLARS (the “Loan”), subject to and upon the terms and conditions hereinafter contained, which Loan shall be evidenced by an Amended and Restated Promissory Note from Borrower to Lender substantially in the form attached hereto as Exhibit A (as it may be amended, restated or modified from time to time, the “Note”);
WHEREAS , Lender has agreed to make the Loan available to Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE , in consideration of the foregoing and of the covenants and conditions hereinafter set forth, Borrower and Lender hereby agree as follows:
1. Definitions. As used herein:
(a) “2011 Warrant” shall have the meaning ascribed to it in Section 7(a) hereof.
(b) “Additional Warrant” shall have the meaning ascribed to it in Section 7(a) hereof.
(c) “Advance” shall have the meaning set forth in Section 2(a) hereof.
(d) “Advance Request” shall have the meaning set forth in Section 2(b) hereof.
(e) “Affiliate” of any Person (as hereinafter defined) shall mean any other Person which, directly or indirectly, controls or is controlled by, or is under common control with such Person. For the purposes of this definition, “controls” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
(f) “Availability Fee” has the meaning ascribed to it in Section 8 hereof.
(g) “Bankruptcy Event” means the commencement of any bankruptcy case or proceedings by or against the Borrower, or alleging that the Borrower is insolvent or unable to pay its debts as they mature or for the readjustment or arrangement of the Borrower’s debts, whether under the United States Bankruptcy Code or under any other law, whether state or federal, now or hereafter existing, for the relief of debtors, or the commencement of any analogous statutory or non-statutory proceedings involving the Borrower; provided, however, that if such commencement of proceedings against the Borrower is involuntary, such action shall not be considered a Bankruptcy Event if such proceeding shall have been dismissed within sixty (60) days after the commencement of such proceedings.
(h) “Change of Control” shall mean such time when any Person or related Persons constituting a group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended), other than the Lender and his Affiliates and their successors and assigns, become beneficial owners, directly or indirectly, of more than fifty percent (50%) of the then total voting power of the capital stock of Borrower.
(i) “Closing Date” shall mean the date on which this Agreement is executed by the parties.
(j) “Event of Default” shall have the meaning set forth in Section 14 hereof.
(k) “Exercise Price” shall have the meaning ascribed to it in Section 7(a) hereof.
(l) “Initial Warrant” shall have the meaning ascribed to it in Section 7 (a) hereof.
(m) “Interest Rate” shall mean 7.5% per annum on the principal amount of the Loan outstanding.
(n) “Loan Documents” shall mean this Agreement, the Note, the Initial Warrant, each Additional Warrant, the 2011 Warrant and any other documents or agreements given to Lender by Borrower in connection with the Loan whether or not specifically set forth herein, as each may be amended, restated or modified from time to time.
(o) “Maximum Advance” shall have the meaning ascribed to it in Section 2(a) hereof.
(p) “Original Closing Date” shall mean November 9, 2009.
(q) “Original Warrants” shall have the meaning ascribed to it in Section 7(a) hereof.
(r) “Person” or “Persons” shall mean any one or more individuals, partnerships, corporations (including a business trust), joint stock companies, limited liability company, trusts, unincorporated associations, joint ventures or other entities, or a foreign state or political subdivision thereof or any agency of such state of subdivision.
(s) “Termination Date” shall mean the earlier of November 9, 2014 or the date on which Lender terminates this Agreement pursuant to Section 14 hereof or Borrower terminates this Agreement pursuant to Section 5 hereof.
2. The Loan .
(a) Provided that no Event of Default shall have occurred and be continuing hereunder, Lender agrees, at anytime prior to the Termination Date subject to the terms and conditions hereinafter set forth, to make advances to the Borrower (each, an “Advance”) in an aggregate amount at any one time outstanding not to exceed Ten Million and 00/100 ($10,000,000.00) Dollars (the “Maximum Advance”). Within the foregoing limits, the Borrower may borrow, prepay and reborrow Advances at any time prior to the Termination Date.
(b) Each request for an Advance (“Advance Request”) shall be made in writing and delivered to Lender not later than forty-eight (48) hours prior to the expected payment of an Advance. Lender shall make the Advance to Borrower in the amount requested in the Advance Request in immediately available funds for credit to any account of Borrower as directed by Borrower.
(c) The proceeds of an Advance shall be used solely by Borrower for working capital purposes, and otherwise as permitted by this Agreement.
3. The Note. The obligation of the Borrower to repay the principal of, any interest on, all Advances made by Lender to Borrower shall be as provided for in this Agreement and the Note. The entire principal amount of the Loan, plus all accrued and unpaid interest thereon and all fees and other amounts payable under this Agreement, shall be due and payable on the Termination Date.
4. Interest. Borrower shall pay interest quarterly, in arrears, on the daily unpaid principal amount of the Advances at the Interest Rate, payable on the first business day of each fiscal quarter, commencing on the later of April 1, 2010 or such first business day of a subsequent fiscal quarter following an Advan