Exhibit 10.1
FIRST AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
entered into as of February 8, 2010 by and between Silicon Valley Bank ("Bank")
and Enteromedics Inc., a Delaware corporation ("Borrower") whose address is 2800
Patton Road, Saint Paul, MN 55113.
RECITALS
A. Borrower, as borrower, and Bank, Compass Horizon Funding Company LLC ("HTF")
and Venture Lending & Leasing V, Inc. ("VLL"), as lenders, entered into that
certain Loan and Security Agreement with an "Effective Date" of November 18,
2008, a copy of which is attached hereto as Exhibit A (the "Prior Loan
Agreement").
B. Borrower has repaid HTF and VLL (collectively, the "Payoffs") the respective
Term Loans (as defined in the Prior Loan Agreement) the Borrower owed them under
the Prior Loan Agreement (collectively, the "HTF and VLL Term Loans"), but
Borrower remains indebted to Bank for the Term Loan (as defined in the Prior
Loan Agreement) made by Bank under the Prior Loan Agreement (the "SVB Term
Loan") in the outstanding principal amount of $7,919,883.82 as of January 5,
2010.
C. Borrower and Bank desire that the SVB Term Loan be repaid in accordance with
the "Amended SVB/Borrower Loan Agreement" (as defined below), in accordance with
the terms, subject to the conditions and in reliance upon the representations
and warranties set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall
have the meanings given to them in the Amended SVB/Borrower Loan Agreement.
2. Amended SVB/Borrower Loan Agreement. Borrower and Bank (a) agree that the SVB
Term Loan shall be repaid in accordance with the terms of the Amended
SVB/Borrower Loan Agreement and the representations, warranties, and agreements
by Bank and Borrower with or in favor of the other under the Prior Loan
Agreement are hereby amended to read as set forth in the Amended SVB/Borrower
Loan Agreement, to which HTF and VLL shall not be parties, and (b) acknowledge
that the Prior Loan Agreement shall continue among Borrower, HTF and VLL to the
extent, if at all, any of the representations, warranties, or agreements thereof
among the Borrower, HTF and VLL survived the Payoff, but that Bank shall not be
a party thereto.
3. Amended SVB/Borrower Loan Agreement. Borrower and Bank hereby agree that the
"Amended SVB/Borrower Loan Agreement" shall read the same as the Prior Loan
Agreement, except as amended hereby, and Borrower and Bank hereby agree to and
adopt, as the Amended SVB/Borrower Loan Agreement, the terms of the Prior Loan
Agreement as amended hereby.
3.1 Introduction. The first sentence of the introduction to the Amended
SVB/Borrower Loan Agreement reads as follows:
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") dated as of the Effective
Date among SILICON VALLEY BANK, a California corporation ("SVB"), COMPASS