EXHIBIT 10.1


 


	
  

  	
   

  	
  TENTH
  MODIFICATION TO 

  LOAN AND SECURITY AGREEMENT

  



 


This Tenth Modification to Loan and Security Agreement
(this “Modification”) is entered into by and between ORANGE 21, Inc. (“Borrower”)
and Comerica Bank (“Bank”), at San Jose, California, as of December 29,
2005.


 


RECITALS


 


This Modification is entered into upon the basis of
the following facts and understandings of the parties, which facts and
understandings are acknowledged by the parties to be true and accurate:


 


Bank and Borrower have previously entered into that
certain Loan and Security Agreement (Accounts and Inventory), dated October 5,
2001, as modified by that certain First Modification dated July 17, 2002,
as modified by that certain Second Modification dated March 21, 2003, as
modified by that certain Third Modification dated August 14, 2003, as
modified by that certain Fourth Modification dated November 26, 2003, as
modified by that certain Fifth Modification dated December 16, 2003, as
modified by that certain Sixth Modification dated August 5, 2004, as
modified by that certain Seventh Modification dated December 2, 2004, as
modified by that certain Eighth Modification dated January 27, 2005, as
modified by that certain Ninth Modification dated November 4, 2005.  The Loan and Security Agreement (Accounts and
Inventory), as amended, modified, revised or restated from time to time shall
be referred to herein as the “Agreement.”


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as set forth below.


 


AGREEMENT


 


1.     Incorporation
by Reference.  The Recitals and the
documents referred to therein are incorporated herein by this reference.  Except as otherwise noted, the terms not
defined herein shall have the meaning set forth in the Agreement.


 


2.     Modification
to the Agreement.  Subject to the
satisfaction of the conditions precedent as set forth in Section 3 hereof,
the Agreement is hereby modified as set forth below.


 


A.    The “Revolving
Maturity Date” defined in Exhibit A of the Agreement entitled “Definitions”
is hereby amended to read as follows:


 


“Revolving Maturity Date means April 5, 2006.”


 


3.     Legal
Effect.  Except as specifically set
forth in this Modification, all of the terms and conditions of the Agreement
remain in full force and effect.  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.  Borrower ratifies and reaffirms
the continuing effectiveness of all promissory notes, guaranties, security
agreements, mortgages, deeds of trust, environmental agreements, and all other
instruments, documents and agreements entered into in connection with the
Agreement.  Borrower represents and
warrants that the Representations and Warranties contained in the Agreement are
true and correct as of the date of this Amendment, and that no Event of Default
has occurred and is continuing.  The
effectiveness of this Modification and each of the documents, instruments and
agreements entered into in connection with this Modification, including without
limit any replacement promissory note entered into in connection herewith, is
conditioned upon receipt by Bank of this Modification, any other documents
which Bank may require to carry out the terms hereof.


 


4.     Miscellaneous
Provisions.


 


(a)   This is an integrated Modification and
supersedes all prior negotiations and agreements regarding the subject matter
hereof.  All amendments hereto must be in
writing and signed by the parties.


 


(b)   This Modification may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.


 


IN
WITNESS WHEREOF, the parties have agreed as of the date first set forth above.


 


	
  ORANGE
  21, INC.

  	
  COMERICA
  BANK

  
	
  By:

  	
  /s/ Michael C.
  Brower

  	
   

  	
  By:

  	
  /s/ illegible
  for RB

  	
   

  
	
  Name:

  	
  Michael C.
  Brower

  	
  Richmond Boyce

  
	
  Title:

  	
  CFO

  	
  Vice President -
  Western Division

  
	
   

  	
  #49772 Senior
  Vice President – Western Division