THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT
99.1
THIRD
AMENDMENT
TO
AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT to Amended
and Restated Loan and Security Agreement (this “Amendment”) is entered
into effective as of the 24th day of December, 2009, by and between Silicon
Valley Bank (“Bank”) and Cimetrix Incorporated, a Nevada corporation
(“Borrower”) whose address is 0000 X. Xxxx Xxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx
00000.
Recitals
A. Bank
and Borrower have entered into that certain Amended and Restated Loan and
Security Agreement dated as of April 9, 2008, as amended by the First Amendment
to Loan and Security Agreement dated as of December 25, 2008, as amended by the
Second Amendment to Loan and Security Agreement dated as of March 31, 2009 (as
the same may from time to time be further amended, modified, supplemented or
restated, 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 to extend the Maturity
Date.
D. Bank
has agreed to so amend certain provisions of the Loan Agreement, but only to the
extent, 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 Loan Agreement.
2. Amendments
to Loan Agreement.
2.1 Section 13.1 (Definitions). The
following term and its definition set forth in Section 13.1 are amended
by deleting the existing definition and replacing it with the
following:
““Maturity Date” is December 23,
2010.”
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 April 9, 2008
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
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 and the Third Amendment to Loan and Security Agreement
(EX-IM Loan Facility) by each party hereto, and (b) Borrower’s payment of a
non-refundable facility fee in an amount equal to $9,000 and Bank's
out-of-pocket expenses.
[Signature
page follows.]
In Witness
Whereof, the parties
hereto have caused this Amendment to be duly executed and delivered on January
12, 2010 and effective as of the date first written above.
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BANK
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BORROWER
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Silicon
Valley Bank
By: /s/
Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Relationship
Manager
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Cimetrix
Incorporated
By: /s/
Xxxx X. Xxxxxxxx
Name: Xxxx
X. Xxxxxxxx
Title: Chief
Financial Officer
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