Unassociated Document


    
      Exhibit
10.1

    

     

    
      FIRST AMENDMENT TO LOAN
AGREEMENT

       

      This
First Amendment dated as of May 29, 2009 and effective as of March 31, 2009, by
and between The PrivateBank and Trust Company (“Lender”), and Advanced Photonix,
Inc. (“Borrower”).

       

       

      RECITALS

       

      A. The
Lender and Borrower entered into that certain Loan Agreement dated September 25,
2008 (the “Agreement”). Capitalized terms not defined herein shall have the
meanings ascribed to them in the Agreement.

       

      B. Lender
and Borrower desire to amend the Agreement as set forth below.

       

      NOW,
THEREFORE, Lender and Borrower agree as follows:

       

      1. The
following definitions in Section 1 of the Agreement are amended to read as
follows:

       

      “‘Base
Net Worth’ shall initially be Fifteen Million Five Hundred Thousand Dollars
($15,500,000). On the last day of each fiscal year of Borrower, Base Net Worth
shall increase by ten percent (10%) of Net Income for the fiscal year then
ended. If Net Income for any fiscal year is less than $0, it shall be deemed to
be $0 for purposes of this calculation.

       

      ‘Debt
Service Coverage Ratio’ shall mean as of any date of determination thereof a
ratio the numerator of which is Adjusted EBITDA for the applicable measuring
period, plus the net cash proceeds of the issuance by Borrower of any Eligible
Capital Securities during such period and the denominator of which is all
payments of principal with respect to interest bearing debt during such period
(including the principal component of Capitalized Lease obligations), plus
interest expense for such period (including the interest component of
Capitalized Lease obligations), all as determined on a consolidated basis for
Borrower and its consolidated Subsidiaries in accordance with
GAAP.  The applicable measuring period shall be (i) the fiscal year to
date period for any determination date occurring before March 31, 2010 and (ii)
the preceding twelve (12) months ending on such date for any date of
determination occurring on or after March 31, 2010.”

       

      “Net
Worth” shall mean, as of any date of determination, the excess of (i) the net
book value of the assets of Borrower and its consolidated Subsidiaries as of
such date, after all appropriate deductions in accordance with GAAP (including,
without limitation, reserves for doubtful receivables, obsolescence,
depreciation and amortization) over (ii) Debt of Borrower and its consolidated
Subsidiaries as of such date, all as determined in accordance with GAAP;
provided, however, in calculating Net Worth, there shall be added to the net
book value of Borrower’s assets an amount equal to the lesser of (x) $2,000,000
and (y) the amount of non-cash intangible asset impairment charges taken by
Borrower with respect to the period beginning March 31, 2009 and ending December
31, 2009.”

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      2. Section
6.5 of the Agreement is amended to read as follows:

       

      “6.5         Financial
Covenants.

       

      (a)           Borrower
shall maintain at all times a Debt Service Coverage Ratio of not less than the
following amounts for the periods specified below:

      
        
          
            
              	 	 
	
                      June
      30, 2009

                    	
                      1.00
      to 1.0

                    
	
                      September
      30, 2009

                    	
                      1.25
      to 1.0

                    
	
                      December
      31, 2009 and thereafter

                    	
                      1.50
      to 1.0

                    
	 	 


            

          

        

      

      (b)           Borrower
shall maintain at all times Adjusted EBITDA of not less than the following
amounts for the periods specified below:

      
        
          
            	 	 	 	 	 
	
                    June
      30, 2009

                  	 	$	205,000	 
	
                    September
      30, 2009

                  	 	$	520,000	 
	
                    December
      31, 2009

                  	 	$	1,675,000	 
	
                    March
      31, 2010 and thereafter

                  	 	$	3,425,000	 
	 	 	 	 	 


          

        

      

      Adjusted
EBITDA shall be determined on a fiscal year to date basis for the June 30, 2009
through December 31, 2009 test dates and thereafter on a trailing twelve month
basis.

       

      (c)           Borrower
shall maintain at all times Net Worth of not less than the Base Net
Worth.”

       

      3. Borrower
violated the provisions of Section 6.5(b) of the Agreement for the fiscal
quarter ended March 31, 2009 (the “Covenant Violation”). The Lender hereby
waives any event of default under the Agreement resulting from the Covenant
Violation. This waiver shall not be deemed to amend or alter in any respect the
terms and conditions of the Agreement or any of the other loan documents, or to
constitute a waiver or release by the Lender of any right, remedy or event of
default under the Agreement or any of the other loan documents, except to the
extent expressly set forth above. Furthermore, this waiver shall not affect in
any manner whatsoever any rights or remedies of the Lender with respect to any
other non-compliance by the Borrower with the Agreement or the other loan
documents whether in the nature of an event of default or otherwise, and whether
now in existence or subsequently arising.

       

      4. Borrower
will reimburse the Lender for all costs and expenses, including reasonable
attorneys’ fees, incurred by the Lender in connection with the preparation of
this Amendment and the documents, instruments and agreements executed in
connection herewith.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      5. Borrower
hereby represents and warrants that, after giving effect to the amendments and
waiver contained herein, (a) execution, delivery and performance of this
Amendment and any other documents and instruments required under this Amendment
or the Agreement are within Borrower’s powers, have been duly authorized, are
not in contravention of law or the terms of Borrower’s Articles of Incorporation
or Bylaws, and do not require the consent or approval of any governmental body,
agency, or authority; and this Amendment and any other documents and instruments
required under this Amendment or the Agreement, will be valid and binding in
accordance with their terms; (b) the continuing representations, warranties and
covenants of Borrower set forth in Section 5 of the Agreement and any other
documents, instruments or agreements executed in connection therewith, are true
and correct on and as of the date hereof with the same force and effect as if
made on and as of the date hereof; and (c)  no event of default, or
condition or event which, with the giving of notice or the running of time, or
both, would constitute an event of default under the Agreement, has occurred and
is continuing as of the date hereof.

       

      6. BORROWER WAIVES, DISCHARGES, AND
FOREVER RELEASES LENDER, LENDER’S EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS,
STOCKHOLDERS, AND THEIR SUCCESSORS AND ASSIGNS, FROM AND OF ANY AND ALL CLAIMS,
CAUSES OF ACTION, ALLEGATIONS OR ASSERTIONS THAT BORROWER HAS OR MAY HAVE HAD AT
ANY TIME UP THROUGH AND INCLUDING THE DATE OF THIS AMENDMENT, AGAINST ANY OR ALL
OF THE FOREGOING, REGARDLESS OF WHETHER ANY SUCH CLAIMS, CAUSES OF ACTION,
ALLEGATIONS OR ASSERTIONS ARE KNOWN TO COMPANIES OR WHETHER ANY SUCH CLAIMS,
CAUSES OF ACTION, ALLEGATIONS OR ASSERTIONS AROSE AS RESULT OF LENDER’S ACTIONS
OR OMISSIONS IN CONNECTION WITH THE AGREEMENT OR ANY OTHER DOCUMENTS,
INSTRUMENTS OR AGREEMENTS IN CONNECTION THEREWITH, OR ANY AMENDMENTS, EXTENSIONS
OR MODIFICATIONS THERETO, OR BANK’S ADMINISTRATION OF THE DEBT UNDER
THE AGREEMENT OR OTHERWISE.

       

      7. This
Amendment shall be effective as of March 31, 2009 upon (a) the execution by
Borrower and Lender of this Amendment, (b) execution by the Guarantors of the
attached Affirmation of Guaranty and (c) payment by Borrower to Lender of a
non-refundable amendment fee in the amount of $22,594.

       

      8. Except as
modified hereby, all of the terms and conditions of the Agreement shall remain
in full force and effect.

       

      9. This
Amendment may be executed and acknowledged in counterparts, each of which shall
constitute an original and all of which shall together constitute one and the
same Amendment.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

         

         

      

      
        
          	
                  THE
      PRIVATEBANK AND TRUST

                	 
      	
                  ADVANCED
      PHOTONIX, INC.

                
	
                  COMPANY

                	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                  By:
      /s/ Eric
    Haege

                	 
      	
                  By:
      /s/
      Robin Risser

                
	      
      	 
      	 
	
                  Its:
      Associate
      Manager

                	 
      	
                  Its:
      Chief Financial
      Officer

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                  By:
      /s/
      Richard Kurtz

                
	 
      	 
      	 
	 
      	 
      	
                  Its:
      CEO

                


        

      

      


      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      AFFIRMATION
OF GUARANTY

       

      The
undersigned acknowledge the foregoing First Amendment to Loan Agreement, and
ratify and confirm their obligations under their Guaranty of Borrower’s
obligations to the Lender and acknowledge that the Guaranty remains in full
force and effect in accordance with its terms subject to no setoff, defense or
counterclaim.

       

      
        
          	 
      	 
      
	 
      	 
      
	
                  May
      29, 2009

                	
                  SILICON
      SENSORS, INC.

                
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                  By: /s/ Richard
  Kurtz

                
	 
      	 
      
	 
      	
                  Its: President

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By: /s/ Robin
  Risser

                
	 
      	
                         

                
	 
      	
                  Its: Secretary

                
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                  PICOMETRIX
      LLC

                
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                  By: /s/ Richard
  Kurtz

                
	 
      	 
      
	 
      	
                  Its: President

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By: /s/ Robin
  Risser

                
	 
      	
                         

                
	 
      	
                  Its: Secretary