EXHIBIT 10.1


 


SIXTH AMENDMENT


TO


LOAN AND SECURITY AGREEMENT


 


This Sixth Amendment to
Loan and Security Agreement (the “Amendment”) is entered into as of October 27,
2005, by and between COMERICA BANK (“Bank”) and ALIGN TECHNOLOGY, INC. (“Borrower”).


 


RECITALS


 


Borrower and Bank are parties to that certain Loan and
Security Agreement dated as of December 20, 2002, (as amended from time to
time, including without limitation that certain Amendment No. 1 to Loan
and Security Agreement with Limited Waiver dated as of August 4, 2003,
that certain Second Amendment to Loan and Security Agreement dated as of September 29,
2003, that certain Amendment No. 3 to Loan and Security Agreement dated December 17,
2003, that certain Fourth Amendment to Loan and Security Agreement dated January 28,
2005, and that certain Fifth Amendment to Loan and Security Agreement dated April 22,
2005, together with any related agreements, the “Agreement”).  Hereinafter, all indebtedness owing by
Borrower to Bank shall be referred to as the “Indebtedness.”  The parties desire to amend the Agreement in
accordance with the terms of this Amendment.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:


 


AGREEMENT


 


I.                                         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.


 


II.                                     Amendment to the Agreement.  Subject to the satisfaction of the conditions
precedent as set forth in Article IV hereof, the Agreement is hereby
amended as set forth below.


 


A.                                   Section 6.7(c) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(c)                            EBITDA.  EBITDA in the
minimum amount of $0.00, for the fiscal quarter September 30, 2005, and
thereafter.”


 


III.                                 Legal Effect.


 


A.                                   The
Agreement is hereby amended wherever necessary to reflect the changes described
above. Borrower agrees that it has no defenses against the obligations to pay
any amounts under the Indebtedness.


 


B.                                     Borrower
understands and agrees that in modifying the existing Indebtedness, Bank is
relying upon Borrower’s representations, warranties, and agreements, as set forth
in the Agreement.  Except as expressly
modified pursuant to this Amendment, the terms of the Agreement remain
unchanged, and in full force and effect.  
Bank’s agreement to modifications to the existing Indebtedness pursuant
to this Amendment in no way shall obligate Bank to make any future
modifications to the Indebtedness. 
Nothing in this Amendment shall constitute a satisfaction of the
Indebtedness.  It is the intention of
Bank and Borrower to retain as liable parties, all makers and endorsers of Agreement,
unless the party is expressly released by Bank in writing.  No maker, endorser, or guarantor will be
released by virtue of this Amendment. 
The terms of this paragraph apply not only to this Amendment, but also
to all subsequent loan modification requests.


 


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C.                                     This
Amendment 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.  This is an integrated Amendment
and supersedes all prior negotiations and agreements regarding the subject
matter hereof.  All modifications hereto
must be in writing and signed by the parties.


 


IV.                                 Conditions Precedent.                        Except as specifically set
forth in this Amendment, all of the terms and conditions of the Agreement
remain in full force and effect.  The
effectiveness of this Agreement is conditioned upon receipt by Bank of this
Amendment, and any other documents which Bank may require to carry out the
terms hereof, including but not limited to the following:


 


A.                                   This
Amendment, duly executed by Borrower;


 


B.                                     Corporation
Resolutions and Incumbency Certification, duly executed by Borrower;


 


C.                                     A
legal fee from the Borrower in the amount of $250; and


 


C.                                     Such
other documents, and completion of such other matters, as Bank may reasonably
deem necessary or appropriate.


 


IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the first date above written.


 


	
   

  	
   

  	
  ALIGN
  TECHNOLOGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Eldon M. Bullington

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   V-P Finance and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMERICA BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert Ways

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 


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