AMENDED AND RESTATED SECURED REVOLVING LOAN NOTE
AMENDED
AND RESTATED
Up to
$3,000,000
Originally
Dated: August 7, 2007
Amended
and Restated: August 20, 2008, effective August 7, 2008
FOR VALUE RECEIVED, the undersigned,
EMAGIN CORPORATION, a
Delaware corporation, with its principal place of business located at 00000 X.X.
8th
Street, Suite 0000 Xxxxxxxx, Xxxxxxxxxx 00000 (“eMagin” or “Borrower”) promises to pay to
the order of MORIAH CAPITAL,
L.P., a Delaware limited partnership with offices at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and its successors and assigns (“Lender”), on or before the
Maturity Date, the principal sum of up to Three Million Dollars ($3,000,000) in
accordance with the Loan and Security Agreement, dated as of August 7, 2007, as
amended through the date hereof, entered into by and between Borrower and Lender
(as so amended, and as amended from time to time, the “Agreement”). Capitalized
terms used herein and not defined herein shall have their respective meanings as
set forth in the Agreement.
INTEREST; DUE
DATE: Interest shall be due and payable as provided in the
Agreement. The Loan and all other Indebtedness evidenced hereby not
paid before the Maturity Date shall be due and payable on the Maturity
Date.
MAXIMUM RATE OF
INTEREST: It is intended that the rate of interest herein
shall never exceed the maximum rate, if any, which may be legally charged on the
Loans evidenced by this Note (the “Maximum Rate”), and if the
provisions for interest contained in this Note would result in a rate higher
than the Maximum Rate, interest shall nevertheless be limited to the Maximum
Rate, and any amounts which may be paid toward interest in excess of the Maximum
Rate shall be applied to the reduction of principal, or, at the option of
Lender, returned to Borrower.
PLACE OF
PAYMENT: All payments hereon shall be made, and all notices to
Lender required or authorized hereby shall be given, at the office of Lender at
the address designated in the Agreement, or to such other place as Lender may
from time to time direct by written notice to Xxxxxxxx.
APPLICATION OF
PAYMENTS: All payments received hereunder shall be applied in
accordance with the provisions of the Agreement.
PAYMENT AND
COLLECTION: All amounts payable hereunder are payable by check
or wire transfer in immediately available funds to the account number specified
by Xxxxxx, in lawful money of the United States. Xxxxxxxx agrees to
perform and comply with each of the covenants, conditions, provisions and
agreements contained in every instrument now evidencing or securing said
Indebtedness.
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SECURITY: This
Note is issued pursuant to the Agreement and is secured by a pledge of the
Collateral as described in the Loan Documents. Notwithstanding the
pledge of the Collateral described above, Borrower hereby acknowledges, admits
and agrees that Xxxxxxxx’s obligations under this Note are recourse obligations
of Borrower to which Borrower pledges its full faith and credit.
DEFAULTS: Upon
the happening of an Event of Default, Lender shall have all of the rights and
remedies set forth in the Agreement.
The
failure to exercise any of the rights and remedies set forth in the Agreement
shall not constitute a waiver of the right to exercise the same or any other
option at any subsequent time in respect of the same event or any other
event. The acceptance by Lender of any payment which is less than
payment in full of all amounts due and payable at the time of such payment shall
not constitute a waiver of the right to exercise any of the foregoing rights and
remedies at that time or at any subsequent time or nullify any prior exercise of
any such rights or remedies without the express consent of Lender, except as and
to the extent otherwise provided by law.
WAIVERS: Borrower
waives diligence, presentment, protest and demand and also notice of protest,
demand, dishonor and nonpayment of this Note.
TERMINOLOGY: Any
reference herein to Lender shall be deemed to include and apply to every
subsequent holder of this Note. Any reference herein to Borrower
shall mean eMagin and any of its Subsidiaries that may be bound under any of the
Loan Documents.
AGREEMENT: Reference
is made to the Agreement for provisions as to the Loan, rates of interest,
Collateral, acceleration and release matters. If there is any
conflict between the terms of this Note and the terms of the Agreement, the
terms of the Agreement shall control.
APPLICABLE
LAW: This Note shall be governed by and construed and
interpreted in accordance under the laws of the State of New York, the laws of
which Borrower hereby expressly elects to apply to this Note, without giving
effect to provisions for choice of law thereunder, other than Section 5-1401 of
the New York General Obligations Law. Xxxxxxxx agrees that any action or
proceeding brought to enforce or arising out of this Note shall be commenced in
accordance with the provisions of the Agreement.
AMENDMENT AND
RESTATEMENT: This Note is given in substitution for, and amends and
restates in its entirety, and as so amended and restated supersedes, that
certain Secured Revolving Convertible Loan Note, dated August 7, 2007, in the
original principal amount of up to $2,500,000 (“Original Note”), which
Original Note is being delivered to Borrower for cancellation. This Note is not
in payment, novation, satisfaction or cancellation of the Original Note, or of
the indebtedness evidenced and secured thereby, and such indebtedness is hereby
ratified and confirmed by Xxxxxxxx, as amended hereby. It is expressly
understood and agreed that this Note is given to amend and restate the terms of
the Original Note, and that no part of the indebtedness evidenced by the
Original Note shall be discharged, cancelled or impaired by the execution and
delivery of this Note.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, this
Amended and Restated Secured Revolving Loan Note has been duly executed and
delivered as of the day and year first above written.
| EMAGIN CORPORATION | |||
|
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By:
|
/s/ | |
| Name | |||
| Title | |||
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