FIRST AMENDMENT
EXHIBIT
10.14.1
FIRST
AMENDMENT
TO
This First
Amendment to Loan and Security Agreement (this “Amendment”) is entered into as
of June 19, 2007, by and between Hercules
Technology Growth Capital, Inc. (“Lender”) and NEXX
SYSTEMS, INC.,
a Delaware corporation, and each of its subsidiaries, (hereinafter
collectively referred to as the “Borrower”).
Recitals
Borrower
and Lender are parties to that certain Loan and Security Agreement dated as of
December 19, 2006, as amended from time to time (the “Agreement”). The
parties desire to amend the Agreement in accordance with the terms of this
Amendment. Unless otherwise defined herein, capitalized terms in this
Amendment shall have the meanings assigned in the Agreement.
Now,
Therefore, the parties agree as follows:
1. The
following definitions in Section 1.1 of the Agreement are hereby added or
amended to read as follows:
“Borrowing Base” means the sum of (i)
an amount equal to up to 85% of Eligible Accounts plus (ii) the lesser of
$6,000,000 or up to 80% of Backlog through June 22, 2008, and the lesser of
$2,500,000 or up to 80% of Backlog thereafter.
“Interest Rate” means (a) for Term
Advances: for any day, the prime rate as reported in The Wall Street Journal
plus 2.75%, (b) for Revolving Advances, the prime rate as reported in
The Wall Street Journal plus 3.75% or, if the outstanding average daily balance
of the Revolving Advances falls below (i) $6,172,000 for the third fiscal
quarter of 2007, (ii) $5,945,000 for the fourth fiscal quarter of 2007, (iii)
$5,750,000 for the first fiscal quarter of 2008, or (iv) $5,500,000 for the
second fiscal quarter of 2008, the prime rate as reported in The Wall Street
Journal plus 1.75% for each month during which the balance falls below such
amount. For purposes of this definition of “Interest Rate”,
calculation of each such threshold shall be adjusted, beginning on July 1, 2007,
by adding fifty percent (50%) of EBITDA (positive or negative) for the quarter
ending June 30, 2007 and subsequently on a cumulative monthly
basis. On or after June 20, 2008, Interest Rate for the Revolving
Advances shall mean the prime rate as reported in The Wall Street Journal plus
1.75%.
“Maximum Loan Amount” means
$13,000,000.
“Revolving Line” means $6,000,000,
increasing to $8,000,000 upon completion of acceptable accounts
receivable/inventory field audit, reducing to $5,000,000 on June 20,
2008.
2. Section
2.1(a) is amended to read as follows:
(a) Revolving Advances.
Subject to the terms and conditions of this Agreement, Lender will make
Revolving Advances to Borrower in minimum increments of $250,000, through
December 15, 2009 equal to the lesser of the Borrowing Base or the Revolving
Line. If the outstanding Revolving Advances exceed the lesser of the
then applicable Borrowing Base or the Revolving Line at any time, Borrower shall
on demand repay to Lender the amount of such excess in cash. Subject
to the terms and conditions of this Agreement including without limitation
Section 2.7, Revolving Advances may be repaid and reborrowed at any time through
December 15, 2009, at which time all Revolving Advances shall be immediately due
and payable.
3. The
following sentence is added to the end of Section 2.7: “If any part of the
incremental $3,000,000 of Revolving Advances is repaid with the proceeds of any
funds lent to Borrower by a commercial bank or other business entity (other than
by entities which are then stockholders of Borrower), Borrower shall pay a
prepayment premium equal to 5.0% of the entire $3,000,000. Such
prepayment premium shall not apply to any prepayment if Borrower is in default
of its obligations under the provisions of the Agreement or this Amendment and
Lender has made demand on Borrower to repay the $3,000,000
overadvance.”
4. A new
Section 7.14 is added to the Agreement to read as follows:
7.14 EBITDA. Borrower
shall maintain EBITDA greater than One Dollar ($1) on a cumulative quarterly
basis starting with the quarter ending June 30, 2007. As used herein,
“EBITDA” shall mean with respect to any fiscal period an amount equal to the sum
of (a) consolidated net income of Borrower for such fiscal period as adjusted
for the impact of revenue not recognized due primarily to customer delays
unrelated to Borrower’s system performance, plus (b) in each case to the extent
deducted in the calculation of the Borrower’s consolidated net income and
without duplication, (i) depreciation and amortization for such period, plus
(ii) income tax expense for such period, plus (iii) consolidated total interest
expense paid or accrued during such period, plus (iv) non-cash expense
associated with granting stock options, and minus, to the extent added in
computing consolidated net income, and without duplication, all extraordinary
and non-recurring revenue and gains (including income tax benefits) for such
period, all as determined in accordance with GAAP. The covenant will
be waived for any quarter in which there is positive EBITDA and average daily
balances of Revolving Advances at or below the corresponding levels used to
define the current interest rate in that quarter. This Section 7.14
shall expire and be of no further force or effect upon the repayment of
Revolving Advances in excess of $5,000,000 and the permanent reduction of the
Revolving Line to $5,000,000.
5. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
instrument.
6. As a
condition to the effectiveness of this Amendment, Lender shall have received, in
form and substance satisfactory to Lender, the following:
(a) this
Amendment, duly executed by Borrower;
(b) Corporate
Resolutions;
(c) a Warrant
Agreement;
(d) payment
of a facility fee in an amount equal to $28,500, plus an amendment fee equal to
$8,000, plus an amount equal to the Lender Expenses incurred in connection with
this Amendment.
In Witness
Whereof, the undersigned have executed this Amendment as of the first
date above written.
NEXX SYSTEMS, INC.
By: /s/ Xxxxxxx
Xxxxxx
Title:
CFO
HERCULES
TECHNOLOGY GROWTH CAPITAL, INC.
By: /s/ X. Xxxxxxxx
Martitsh
Title:
Associate General
Counsel
