FIRST AMENDMENT TO LOAN AND SECURITIES PURCHASE AGREEMENT
FIRST AMENDMENT TO LOAN AND
SECURITIES PURCHASE AGREEMENT
This
FIRST AMENDMENT TO LOAN AND SECURITIES PURCHASE AGREEMENT (this “First Amendment”) is
entered into on the 7th day of
December, 2010, to be effective as of the 3rd day of
December, 2010, by and between GR MATCH, LLC, a Delaware limited
liability company (“Lender”),
CYBERDEFENDER CORPORATION, a Delaware corporation
(“Borrower”). Lender
and Borrower may each be referred to herein as a “Party” and, collectively, as
the “Parties.”
RECITALS
WHEREAS,
Lender loaned funds to CyberDefender Corporation, a California corporation
(as predecessor in interest to Borrower) (“CyberDefender
California”), pursuant to the terms and conditions of that certain Loan
and Securities Purchase Agreement, dated as of March 31, 2010, by and between
CyberDefender California and Lender (the “Loan Agreement”),
which loan is evidenced by that certain 9% Secured Convertible Promissory Note,
dated March 31, 2010, issued by CyberDefender California in favor of Lender in
the original principal amount of Five Million Three Hundred Thousand Dollars
($5,300,000); and
WHEREAS,
the Parties desire to further amend the Loan Agreement as set forth
herein.
NOW
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agrees as follows:
1. Amendment to Section
1.1. Section 1.1 of the Loan Agreement shall be amended to add
the following defined term:
“Qualified Offering”
means the sale and issuance by the Company following the date of this Agreement
of any debt or equity securities of the Company in an aggregate amount greater
than Ten Million Dollars ($10,000,000), whether in a single transaction or a
series of related transactions and whether as a private placement or a sale on
any Trading Market, the closing of which occurs on or prior to March 31,
2011.
2. Amendment to Sections 5.17
and 5.18 of the Loan Agreement. Sections 5.17 and 5.18 of the
Loan Agreement, respectively, are hereby amended and restated in their entirety
as follows:
5.17 Debt Coverage
Ratio. From and after the Company's fiscal quarter commencing
January 1, 2011, permit the Company's Debt Coverage Ratio, determined as of the
last day of each fiscal quarter, to be less than a ratio of 2:1; provided,
however, in the event a Qualified Offering occurs, the Lender acknowledges and
agrees that this Section 5.17 shall not apply to the Company's two (2) fiscal
quarters commencing January 1, 2011 and April 1, 2011,
respectively.
5.18 Debt to Earnings
Ratio. From and after the Company's fiscal quarter commencing
January 1, 2011 (but excluding any fiscal quarter during which the closing of a
Qualified Offering occurs and the following fiscal quarter), permit the
Company's Debt to Earnings Ratio, determined as of the last day of each fiscal
quarter, to exceed a ratio of 5:1; provided, however, in the event a Qualified
Offering occurs, the Lender acknowledges and agrees that this Section 5.17 shall
not apply to the Company's two (2) fiscal quarters commencing January 1, 2011
and April 1, 2011, respectively.
2. Conflict; Full Force and
Effect. In the event of any conflict between this First Amendment and the Loan
Agreement, this First
Amendment shall control. The Parties acknowledge and agree
that, except as expressly provided herein, the provisions of the Loan Agreement
shall remain unmodified and in full force and effect.
3. Successors
and Assigns. This First Amendment is and
shall be binding upon each of the Parties and their respective successors and
permitted assigns.
4. Recitals. The recitals to this First
Amendment are hereby incorporated by reference herein.
5. Governing
Law. This First
Amendment shall be governed by the laws of the State of California, without regard to its principles of
conflict of laws.
6. Entire
Agreement. This
First Amendment and the Loan Agreement contains the complete understanding and
agreement of the Parties relating to the subject matter hereof and supersedes
any prior understanding or agreement related thereto, whether written or
oral.
7. Counterparts. This First Amendment may be
executed in multiple counterparts, each of which will be deemed an original, but
together they will constitute one and the same instrument.
[signatures
on following page]
2
IN
WITNESS WHEREOF, this First Amendment has been duly executed by the Parties as
of the date first above written.
| GR Match, LLC, | |||
| a Delaware limited liability company | |||
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By:
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| Name: | |||
| Title: | |||
| CyberDefender Corporation, | |||
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a
Delaware corporation
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By:
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| Name: Xxxx Xxxxxxxx | |||
| Title: Chief Executive Officer | |||
