EXHIBIT 10.38
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE PORTIONS OF THIS AGREEMENT
MARKED [*]. THE OMITTED PORTIONS OF THIS AGREEMENT HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is
entered into by and between ORYX TECHNOLOGY CORPORATION, a Delaware
corporation ("Borrower"), ORYX INSTRUMENTS AND MATERIALS CORPORATION, SURGX
CORPORATION and ORYX POWER PRODUCTS CORPORATION (collectively the
"Guarantors") and [*] ("[*]").
WHEREAS, Borrower and [*] entered into that certain Loan Agreement
dated as of May 29, 1997, as amended from time to time (collectively, the
"Loan Agreement"); and
WHEREAS, the Loan Agreement currently governs (i) a revolving line
of credit in the maximum amount of $1,500,000.00 (the "Line of Credit")
provided by [*] to Borrower, as currently evidenced by that certain Revolving
Credit Promissory Note dated May 29, 1997 payable by Borrower to the order of
[*] in the stated principal amount of $1,500,000.00 (the "Revolving Note");
and
WHEREAS, the Loan Agreement, the Revolving Note and all other
documents evidencing, securing, governing, guaranteeing and/or pertaining to
the Revolving Note is hereinafter referred to collectively as the "Loan
Documents"; and
WHEREAS, the parties hereto now desire to modify the Loan Agreement
as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 The terms used in this Amendment to the extent not otherwise
defined herein shall have the same meanings as in the Loan Agreement.
ARTICLE II
AMENDMENTS
Section 2.01 Effective as of the date hereof, Subsection 12b of the Loan
Agreement is hereby amended in its entirety to read as follows:
"(b) INVENTORY MAINTENANCE CERTIFICATE. An Inventory Maintenance
Certificate, in the form attached hereto as Schedule A, signed by
an officer of the Borrower, within 3 days after the end of each
month."
Section 2.02 Effective as of the date hereof, Subsection 12c of the Loan
Agreement is hereby amended in its entirety to read as follows:
"(c) INVENTORY LISTING. A list of Borrower's inventory by
location and type (to include the following: raw materials, work
in process and finished goods) within 3 days after the end of
each month, in form and detail satisfactory to [*]."
ARTICLE III
NOTE
Section 3.01 The parties hereto acknowledge and agree that notwithstanding
this Amendment, the Revolving Note continues to evidence the indebtedness
arising under the Line of Credit.
ARTICLE IV
REPRESENTATIONS, WARRANTIES, RATIFICATION AND REAFFIRMATION
Section 4.01 Borrower hereby represents and warrants that: (i) the
representations and warranties contained in the Loan Agreement are true and
correct on and as of the date hereof as though made on and as of the date
hereof, (ii) no event has occurred and is continuing that constitutes an
Event of Default or would constitute an Event of Default but for the
requirement of notice or lapse of time or both, and (iii) there are no claims
or offsets against, or defenses or counterclaims to, the Loan Documents, the
indebtedness evidenced thereby or the liens securing same (including without
limitation, any defenses or offsets resulting from or arising out of breach
of contract or duty, the amount of interest charged, collected or received on
the Loan Documents heretofore, or breach of any commitments or promises of
any type).
Section 4.02 The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the
Loan Agreement, but except as expressly modified and superseded by this
Amendment, the terms and provisions of the Loan Agreement are ratified and
confirmed and shall continue in full force and effect, Borrower hereby
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agreeing that the Loan Agreement and the other Loan Documents are and shall
continue to be outstanding, validly existing and enforceable in accordance
with their respective terms.
Section 4.03 Guarantors previously executed those 3 certain guaranty
agreements (collectively the "Guaranty Agreements") each dated May 29, 1997,
executed by the Guarantors for the benefit of [*] to unconditionally
guarantee the payment and performance by Borrower of certain indebtedness
owing to [*] described therein, including without limitation, the
indebtedness evidenced by the Revolving Note. Guarantors, by executing this
Amendment, hereby consent to this Amendment and agree that, notwithstanding
the execution of this Amendment the obligations of the Guarantors under the
Guaranty Agreements remain in full force and effect with respect to the
Revolving Note and that this Amendment does not in any manner impair, alter
or modify the obligations of the Guarantors under the Guaranty Agreements.
Guarantors acknowledge and agree that there are no claims or offsets against,
or defenses or counterclaims to, the terms and provisions of the Guaranty
Agreements or the obligations created or evidenced thereby.
ARTICLE V
MISCELLANEOUS
Section 5.01 Each of the Loan Documents is hereby amended so that any
reference in the Loan Documents to the Loan Agreement shall mean a reference
to the Loan Agreement as amended hereby.
Section 5.02 This Amendment may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 5.03 The Agreement and this Amendment have been entered into in [*],
[*] and shall be performable for all purposes in [*], [*]. THE AGREEMENT, AS
AMENDED HEREBY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF [*]. Courts within the State of [*] shall have
jurisdiction over any and all disputes arising under or pertaining to the
Agreement, as amended hereby, and venue in any such dispute shall be the
courts located in [*], [*].
Section 5.04 This Amendment shall not become effective until executed by [*].
EXECUTED as of February ____, 1998.
BORROWER:
ORYX TECHNOLOGY CORPORATION
By: ________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
GUARANTORS:
ORYX INSTRUMENTS AND MATERIALS
CORPORATION
By: __________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
SURGX CORPORATION
By: __________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
ORYX POWER PRODUCTS CORPORATION
By: __________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
[*]:
By: __________________________
Name: [*]
Title: [*]
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