Unassociated Document


    Exhibit
      10.10

     

    AMENDMENT

    TO
      

    LOAN
      AND SECURITY AGREEMENT

    


    THIS
      AMENDMENT to
      Loan
      and Security Agreement (this “Amendment”)
      is entered into this 22nd day of May 2007, by and between Silicon Valley Bank
      (“Bank”) and R. H. Strasbaugh (fka Strasbaugh), a California corporation
      (“Borrower”) whose address is 825 Buckley Road, San Luis Obispo, California
      93401.

     

    Recitals

     

    A.    Bank
      and
      Borrower have entered into that certain Loan and Security Agreement dated as
      of
      August 23, 2004 (as amended, modified, supplemented or restated from time to
      time, 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, as herein set forth, and
      Bank
      has agreed to the same, but only to the extent, in accordance with the terms,
      subject to the conditions and in reliance upon the representations and
      warranties set forth herein.

     

    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    Exim
      Facility. Reference
      is hereby made to that certain Loan and Security Agreement (Exim Program)
      between the parties dated August 23, 2004 (as amended from time to time, the
      “Exim Loan Agreement”). The Borrower hereby acknowledges that no more Loans
      shall be made under the Exim Loan Agreement and that on the Maturity Date of
      the
      Exim Loan Agreement, all Obligations outstanding under the Exim Loan Agreement
      shall be paid in full in accordance with the terms of the Exim Loan
      Agreement.

     

    2.2    Modified
      Maximum Advances.
      Subject
      to the terms of Section 6 of this Amendment, Section 2.1.1(b) of the Loan
      Agreement that currently reads as follows:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (b)    Maximum
      Advances.
      The
      aggregate face amount of all Financed Receivables outstanding at any time may
      not exceed the Facility Amount, and Bank shall have no obligation to make
      Advances in excess of THREE MILLION DOLLARS ($3,000,000) in the aggregate at
      any
      time outstanding, of which no more than SEVEN HUNDRED FIFTY THOUSAND DOLLARS
      ($750,000) may be comprised of Eligible Accounts that are comprised of Purchase
      Orders (the “Purchase Order Sublimit”); provided however, Borrower acknowledges
      and agrees that at no time shall the aggregate outstanding Advances under this
      Agreement and the Exim Agreement (as defined below) combined exceed
      $3,000,000.

     

    is
      hereby
      amended to read as follows: 

     

    (b)    Maximum
      Advances.
      The
      aggregate face amount of all Financed Receivables outstanding at any time may
      not exceed the Facility Amount, and Bank shall have no obligation to make
      Advances in excess of SIX MILLION DOLLARS ($6,000,000) in the aggregate at
      any
      time outstanding.

     

    2.3    Modified
      Facility Amount.
      Subject
      to the terms of Section 6 of this Amendment, the definition of “Facility Amount”
set forth in Section 13 of the Loan Agreement is hereby amended to read as
      follows:

     

    “Facility
      Amount”
      is Seven
      Million Five Hundred Thousand Dollars ($7,500,000).

    


    2.4    Modified
      Maturity Date.
      Subject
      to the terms of Section 6 of this Amendment, the definition of “Maturity Date”
set forth in Section 13 of the Loan Agreement is hereby amended to read as
      follows:

     

    “Maturity
      Date”
      is
      August 18, 2007.

    


    2.5    Co-Borrower.
      Within
      30 days of the date of this Amendment, if requested by Bank, Borrower shall
      cause CTK (as defined in that certain Consent to Loan and Security Agreement
      between Borrower and Bank dated April 3, 2007 (the “Consent”)) to become a
      co-Borrower under the Loan Agreement (or, if so determined by Bank in its sole
      discretion, a secured guarantor of the Obligations), and Borrower shall cause
      CTK to execute all documents deemed necessary by Bank related
      thereto.

    


    2.6    Consent
      to Name Change.
      Borrower
      has advised Bank that Borrower changed its name from “Strasbaugh” to “R. H.
      Strasbaugh” on May 17, 2007 (the “Name Change”). Notwithstanding anything to the
      contrary contained in Section 7.2(iv) of the Loan Agreement, Bank hereby
      consents to the Name Change. It is understood by the parties hereto, however,
      that such a consent does not constitute a consent to or waiver of any other
      provision or term of the Loan Agreement or any related document, nor an
      agreement to consent to or waive in the future these covenants or any other
      provision or term of the Loan Agreement or any related document.

     

    
      
         

      

      
        -2-

        
          

        

      

      
         

      

    

     

    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 Effective Date
      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

     

    
      
         

      

      
        -3-

        
          

        

      

      
         

      

    

     

    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, (b) Borrower’s payment of an
      amendment fee in an amount equal to $7,500, (c) Bank’s receipt of evidence
      of the closing of the Acquisition (as
      defined in the Consent)
      (d) the
      receipt by CTK (as defined in the Consent) or Borrower, as applicable, of at
      least $12 Million cash proceeds from the issuance of equity securities (the
      “Equity Gross Proceeds”) of CTK or Borrower, as applicable, and evidence of the
      same received by Bank, (e) the payment by Borrower or CTK of all of the
      obligations of Borrower to Agility Capital, LLC (the “Agility Debt”) from the
      Equity Gross Proceeds and evidence of the same received by Bank and (f) the
      Borrower receives at least $6,000,000 net cash proceeds from the Equity Gross
      Proceeds (after deducting payments for fees, expenses, the Agility Debt and
      equity repayments from the Equity Gross Proceeds) and evidence of the same
      received by Bank. 

     

    [Signature
      page follows.]

    


     

    
      
         

      

      
        -4-

        
          

        

      

      
         

      

    

     

    In
      Witness Whereof, the
      parties hereto have caused this Amendment to be duly executed and delivered
      as
      of the date first written above.

    


    


    
      	
              BANK

            	
              BORROWER

            
	
               

              Silicon
                Valley Bank

               

               

              By:   /s/
                Ben Fargo

               

              Name:  Ben
                Fargo                                          

              Title:   UP/Relationship
                Manager               

            	
               

              R.
                H. Strasbaugh

               

               

              By:   /s/
                Richard Nance

               

              Name:  Richard
                Nance                                       

              Title:   Chief
                Financial
                Officer                          

            


    

    


     

     

    -5-