FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
FIRST
AMENDMENT
TO
AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT to Amended
and Restated Loan and Security Agreement (this “Amendment”) is
effective as of 25th day of
December, 2008, 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 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 (i) extend the maturity
date, (ii) modify the interest rate payable on the Advances, and (iii) make
certain other revisions to the Loan Agreement as more fully set forth
herein.
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 2.2.4 (Collateral Handling
Fee). Section 2.2.4 is amended by deleting the first sentence
and replacing it with the following:
“Borrower
will pay to Bank a collateral handling fee equal to .30% per month of the
Financed Receivable Balance for each Financed Receivable outstanding based upon
a 360 day year (the “Collateral Handling Fee”).”
2.2 Section 2.1.1(f) (Early
Termination). Section 2.1.1(f) is amended by deleting the
second sentence and replacing it with the following:
“If this
Agreement is terminated (A) by Bank in accordance with clause (ii) in the
foregoing sentence, or (B) by Borrower for any reason, Borrower shall pay to
Bank a termination fee in an amount equal to Two Thousand Five Hundred Dollars
($2,500) (the “Early Termination Fee”).”
2.3 Section 6.7 (Additional
Equity). The following paragraph is hereby added to the Loan
Agreement as Section
6.7:
“6.7 Additional
Equity. Borrower shall close a Qualified Equity Financing on
or before March 31, 2009.”
2.4 Section 13 (Definitions). The
following terms and their respective definitions set forth in Section 13.1 are amended
by deleting the existing definitions and
replacing
them with the following:
““Applicable Rate” is a per
annum fixed rate equal to 7.75%.
“Maturity Date” is December
24, 2009.”
The
following term and its definition is hereby added to Section 13.1:
““Qualified Equity Financing”
is the next sale (or series of related sales) after January 1, 2009, of
Borrower’s stock or subordinated notes from which Borrower
receives
gross proceeds of not less than $250,000.00 from investors approved by
Bank.”
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 by each party hereto, and (b) Borrower’s payment of
a non-refundable facility fee in an amount equal to $10,000 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 20, 2009, 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/
Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Deal
Team Leader
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Cimetrix
Incorporated
By: /s/
Xxxxxx X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
and CEO
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