Exhibit 10.9
FIRST AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and
Security Agreement (this “Amendment”) is entered into
as of September 14, 2007, by and among COMERICA BANK
(“Bank”), NANOMETRICS INCORPORATED
(“Borrower”), ACCENT OPTICAL TECHNOLOGIES NANOMETRICS,
INC. (“Accent”) and NANOMETRICS IVS DIVISION, INC.
(together with Accent, the “Guarantors”).
RECITALS
Borrower, Bank and the Guarantors
are parties to that certain Loan and Security Agreement dated as of
February 14, 2007, as amended from time to time (the
“Agreement”). The parties desire to amend the Agreement
in accordance with the terms of this Amendment.
NOW, THEREFORE, the parties agree as
follows:
1. Section 3.2(b) is renumbered
Section 3.2(c) and new Section 3.2(b) is hereby added to
the Agreement to read in its entirety as follows:
“(b) with respect to Credit
Extensions under the Revolving Line, receipt by Bank of
Borrower’s aged listing by invoice date of its domestic
accounts receivable for the month ending prior to the applicable
request for Advance; and”
2. Section 6.2(a) of the
Agreement is hereby amended and restated to read in its entirety as
follows:
“(a) (i) So long as there
are any outstandings under the Revolving Line, within 30 days after
the last day of each month through December 31, 2007 and
within 25 days after the last day of each month thereafter,
Borrower shall deliver to Bank a Borrowing Base Certificate signed
by a Responsible Officer in substantially the form of Exhibit D
hereto, together with aged listings by invoice date of domestic
accounts receivable and accounts payable and with the
Borrower’s domestic cash position as of such month’s
end and (ii) within 30 days after the last day of each month
through December 31 , 2007 and within 25 days after the last
day of each month thereafter, Borrower shall deliver to Bank a
Compliance Certificate in substantially the form of Exhibit E
hereto.”
3. Exhibit E to the Agreement is
hereby replaced with Exhibit E attached hereto.
4. No course of dealing on the part
of Bank or its officers, nor any failure or delay in the exercise
of any right by Bank, shall operate as a waiver thereof, and any
single or partial exercise of any such right shall not preclude any
later exercise of any such right. Bank’s failure at any time
to require strict performance by Borrower of any provision shall
not affect any right of Bank thereafter to demand strict compliance
and performance. Any suspension or waiver of a right must be in
writing signed by an officer of Bank.
5. Unless otherwise defined, all
initially capitalized terms in this
