AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.10
AMENDMENT
TO
THIS
AMENDMENT to
Loan
and Security Agreement (this “Amendment”)
is entered into this 22nd day of May 2007, by and between Silicon Valley Bank
(“Bank”) and X. X. Xxxxxxxxxx (fka Xxxxxxxxxx), a California corporation
(“Borrower”) whose address is 000 Xxxxxxx Xxxx, Xxx Xxxx Xxxxxx, Xxxxxxxxxx
00000.
Recitals
A. Bank
and
Borrower have entered into that certain Loan and Security Agreement dated as
of
August 23, 2004 (as amended, modified, supplemented or restated from time to
time, the “Loan Agreement”).
B. Bank
has
extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower
has requested that Bank amend the Loan Agreement, as herein set forth, and
Bank
has agreed to the same, but only to the extent, in accordance with the terms,
subject to the conditions and in reliance upon the representations and
warranties set forth herein.
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 Loan Agreement.
2. Amendments
to Loan Agreement.
2.1 Exim
Facility. Reference
is hereby made to that certain Loan and Security Agreement (Exim Program)
between the parties dated August 23, 2004 (as amended from time to time, the
“Exim Loan Agreement”). The Borrower hereby acknowledges that no more Loans
shall be made under the Exim Loan Agreement and that on the Maturity Date of
the
Exim Loan Agreement, all Obligations outstanding under the Exim Loan Agreement
shall be paid in full in accordance with the terms of the Exim Loan
Agreement.
2.2 Modified
Maximum Advances.
Subject
to the terms of Section 6 of this Amendment, Section 2.1.1(b) of the Loan
Agreement that currently reads as follows:
(b) Maximum
Advances.
The
aggregate face amount of all Financed Receivables outstanding at any time may
not exceed the Facility Amount, and Bank shall have no obligation to make
Advances in excess of THREE MILLION DOLLARS ($3,000,000) in the aggregate at
any
time outstanding, of which no more than SEVEN HUNDRED FIFTY THOUSAND DOLLARS
($750,000) may be comprised of Eligible Accounts that are comprised of Purchase
Orders (the “Purchase Order Sublimit”); provided however, Borrower acknowledges
and agrees that at no time shall the aggregate outstanding Advances under this
Agreement and the Exim Agreement (as defined below) combined exceed
$3,000,000.
is
hereby
amended to read as follows:
(b) Maximum
Advances.
The
aggregate face amount of all Financed Receivables outstanding at any time may
not exceed the Facility Amount, and Bank shall have no obligation to make
Advances in excess of SIX MILLION DOLLARS ($6,000,000) in the aggregate at
any
time outstanding.
2.3 Modified
Facility Amount.
Subject
to the terms of Section 6 of this Amendment, the definition of “Facility Amount”
set forth in Section 13 of the Loan Agreement is hereby amended to read as
follows:
“Facility
Amount”
is Seven
Million Five Hundred Thousand Dollars ($7,500,000).
2.4 Modified
Maturity Date.
Subject
to the terms of Section 6 of this Amendment, the definition of “Maturity Date”
set forth in Section 13 of the Loan Agreement is hereby amended to read as
follows:
“Maturity
Date”
is
August 18, 2007.
2.5 Co-Borrower.
Within
30 days of the date of this Amendment, if requested by Bank, Borrower shall
cause CTK (as defined in that certain Consent to Loan and Security Agreement
between Borrower and Bank dated April 3, 2007 (the “Consent”)) to become a
co-Borrower under the Loan Agreement (or, if so determined by Bank in its sole
discretion, a secured guarantor of the Obligations), and Borrower shall cause
CTK to execute all documents deemed necessary by Bank related
thereto.
2.6 Consent
to Name Change.
Borrower
has advised Bank that Borrower changed its name from “Xxxxxxxxxx” to “X. X.
Xxxxxxxxxx” on May 17, 2007 (the “Name Change”). Notwithstanding anything to the
contrary contained in Section 7.2(iv) of the Loan Agreement, Bank hereby
consents to the Name Change. It is understood by the parties hereto, however,
that such a consent does not constitute a consent to or waiver of any other
provision or term of the Loan Agreement or any related document, nor an
agreement to consent to or waive in the future these covenants or any other
provision or term of the Loan Agreement or any related document.
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3. Limitation
of Amendments.
3.1 The
amendments set forth in Section 2,
above,
are effective for the purposes set forth herein and shall be limited precisely
as written and shall not be deemed to (a) be a consent to any amendment,
waiver or modification of any other term or condition of any Loan Document,
or
(b) otherwise prejudice any right or remedy which Bank may now have or may
have in the future under or in connection with any Loan Document.
3.2 This
Amendment shall be construed in connection with and as part of the Loan
Documents and all terms, conditions, representations, warranties, covenants
and
agreements set forth in the Loan Documents, except as herein amended, are hereby
ratified and confirmed and shall remain in full force and effect.
4. Representations
and Warranties.
To
induce Bank to enter into this Amendment, Borrower hereby represents and
warrants to Bank as follows:
4.1 Immediately
after giving effect to this Amendment (a) the representations and
warranties contained in the Loan Documents are true, accurate and complete
in
all material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they
are
true and correct as of such date), and (b) no Event of Default has occurred
and is continuing;
4.2 Borrower
has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this
Amendment;
4.3 The
organizational documents of Borrower delivered to Bank on the Effective Date
remain true, accurate and complete and have not been amended, supplemented
or
restated and are and continue to be in full force and effect;
4.4 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
4.5 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not and will not contravene (a) any law or regulation binding
on or affecting Borrower, (b) any contractual restriction with a Person
binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrower, or (d) the organizational documents of Borrower;
4.6 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by
any
governmental or public body or authority, or subdivision thereof, binding on
either Borrower, except as already has been obtained or made; and
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4.7 This
Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
5. Counterparts.
This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Effectiveness.
This
Amendment shall be deemed effective upon (a) the due execution and delivery
to
Bank of this Amendment by each party hereto, (b) Borrower’s payment of an
amendment fee in an amount equal to $7,500, (c) Bank’s receipt of evidence
of the closing of the Acquisition (as
defined in the Consent)
(d) the
receipt by CTK (as defined in the Consent) or Borrower, as applicable, of at
least $12 Million cash proceeds from the issuance of equity securities (the
“Equity Gross Proceeds”) of CTK or Borrower, as applicable, and evidence of the
same received by Bank, (e) the payment by Borrower or CTK of all of the
obligations of Borrower to Agility Capital, LLC (the “Agility Debt”) from the
Equity Gross Proceeds and evidence of the same received by Bank and (f) the
Borrower receives at least $6,000,000 net cash proceeds from the Equity Gross
Proceeds (after deducting payments for fees, expenses, the Agility Debt and
equity repayments from the Equity Gross Proceeds) and evidence of the same
received by Bank.
[Signature
page follows.]
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In
Witness Whereof, the
parties hereto have caused this Amendment to be duly executed and delivered
as
of the date first written above.
|
BANK
|
BORROWER
|
|
Silicon
Valley Bank
By: /s/
Xxx Xxxxx
Name: Xxx
Xxxxx
Title: UP/Relationship
Manager
|
X.
X. Xxxxxxxxxx
By: /s/
Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
Title: Chief
Financial
Officer
|
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