EXHIBIT 10.1


 


AMENDMENT 


 


THIS AMENDMENT is made as of the
8th day of September, 2003, between General Electric Capital Corporation
(“Secured Party”) and Macropore Biosurgery, Inc. (“Debtor”) in connection with
that certain Master Security Agreement, dated as of October 2, 2001
(“Agreement”).  The terms of this
Amendment are hereby incorporated into the Agreement as though fully set forth
therein. 
Section references below refer to the section numbers of the
Agreement.  The Agreement is hereby amended as follows:


 


5.              REPORTS.


 


Subsection (b)
is hereby replaced with the following:


 


“(b) Debtor will deliver to
Secured Party financial statements as follows. 
If Debtor is a privately held company, then Debtor agrees to provide
monthly financial statements, certified by Debtor’s president or chief
financial officer including a balance sheet, statement of operations and cash
flow statement within 30 days of each month end and its complete audited annual
financial statements, certified by a recognized firm of certified public
accountants, within 120 days of fiscal year end or at such time as Debtor’s
Board of Directors receives the audit. 
If Debtor is a publicly held company, then Debtor agrees to provide
quarterly unaudited statements and annual audited statements, certified by a
recognized firm of certified public accountants, within 10 days after the
statements are provided to the Securities and Exchange Commission (“SEC”)
unless the reports are available on the SEC web site.  All such statements are to be prepared using generally accepted
accounting principles (“GAAP”) and, if Debtor is a publicly held company, are
to be in compliance with SEC requirements.”


 


7.              DEFAULT AND REMEDIES.


 


Subsection (a)
is hereby amended with the following:


 


“(a) Debtor shall be in default under this Agreement and each of the
other Debt Documents if:


 


(i)              Debtor breaches its obligation to pay when due
any installment or other amount due or coming due under any of the Debt
Documents;


 


(ii)           Debtor, without the prior written consent of Secured Party, attempts to
or does sell, rent, lease, license, mortgage, grant a security interest in, or
otherwise transfer or encumber (except for Permitted Liens) any of the
Collateral;


 


(iii)        Debtor breaches any of its insurance obligations under Section 4;


 


(iv)       Debtor breaches any of its other obligations under any of the Debt
Documents and fails to cure that breach within thirty (30) days after written
notice from Secured Party;


 


(v)          Any warranty, representation or statement made by Debtor in any of the
Debt Documents or otherwise in connection with any of the Indebtedness shall be
false or misleading in any material respect;


 


(vi)       Any of the Collateral is subjected to attachment, execution, levy,
seizure or confiscation in any legal proceeding or otherwise, or if any legal
or administrative proceeding is commenced


 


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against
Debtor or any of the Collateral,  which
in the good faith judgment of Secured Party subjects any of the Collateral to a
material risk of attachment, execution, levy, seizure or confiscation and no
bond is posted or protective order obtained to negate such risk;


 


(vii) Debtor breaches or is in default under any other agreement between
Debtor and Secured Party;


 


(viii)
Debtor or any guarantor or other obligor for any of the Indebtedness
(collectively “Guarantor”)
dissolves, terminates its existence, becomes insolvent or ceases to do business
as a going concern;


 


(ix)
If Debtor or any Guarantor is a natural person, Debtor or any such Guarantor
dies or becomes incompetent;


 


(x)
A receiver is appointed for all or of any part of the property of Debtor or any
Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of
creditors;


 


(xi)
Debtor or any Guarantor files a petition under any bankruptcy, insolvency or
similar law, or any such petition is filed against Debtor or any Guarantor and
is not dismissed within forty-five (45) days;


 


(xii)
Debtor’s improper filing of an amendment or termination statement relating to a
filed financing statement describing the Collateral; or


 


(xiii)
Debtor defaults under any other material obligation for (A) borrowed money, (B)
the deferred purchase price of property or (C) payments due under any lease
agreement. For purposes of the preceding sentence, “material obligation” shall
mean any obligation to pay Five Hundred Thousand dollars or more during any
twelve month period.


 


(xiv)
At any time during the term of this Agreement Debtor sells more than 50% of its
interest in the company to another corporation or business or all or
substantially all of its assets without Secured Party’s prior written consent.


 


TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL
HAVE THE MEANINGS GIVEN TO THEM IN THE AGREEMENT.  EXCEPT AS EXPRESSLY AMENDED HEREBY, THE AGREEMENT SHALL REMAIN IN
FULL FORCE AND EFFECT.   IF THERE IS ANY
CONFLICT BETWEEN THE PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, THEN THIS
AMENDMENT SHALL CONTROL.


 


IN WITNESS WHEREOF, the parties hereto have executed this Amendment
simultaneously with the Agreement by signature of their respective authorized
representative set forth below.


 


	
  General Electric
  Capital Corporation

  	
  Macropore Biosurgery, Inc.

  	
   

  
	
   

  
	
  By:

  	
  /s/ John Edel

  	
   

  	
  By:

  	
  /s/ Charles E. Galetto

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
  : John Edel

  	
   

  	
  Name:

  	
  Charles E. Galetto

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Senior Vice-President

  	
   

  	
  Title:

  	
  V.P. of Finance

  	
   

  
									



 


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