THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT AND FIRST AMENDMENT TO PRIME REFERENCED RATE ADDENDUM
THIRD AMENDMENT TO
LOAN
AND SECURITY AGREEMENT AND FIRST AMENDMENT TO PRIME REFERENCED RATE
ADDENDUM
This
Third Amendment to Loan and Security Agreement and First Amendment
to Prime Referenced Rate Addendum (“Amendment”) is entered
into as of June 9, 2020 between Comerica Bank (“Bank”) and MobileSmith,
Inc., a Delaware corporation (“Borrower”).
RECITALS
A. Borrower
and Bank are parties to that Loan and Security Agreement dated June
9, 2014, (as amended by the First Amendment to Loan and Security
Agreement dated as of May 24, 2016 and the Second Amendment to Loan
and Security Agreement dated as of June 8, 2018, the
“Agreement”).
B. Borrower
and Bank entered into that certain Prime Referenced Rate Addendum
to Loan and Security Agreement, dated as of June 9, 2014 (as
amended, restated, supplemented or otherwise modified from time to
time, the “Addendum”), which
supplements the terms of the Agreement.
C. The
parties desire to further amend the Agreement and Addendum as set
forth herein.
NOW,
THEREFORE, the parties agree as follows:
1. Amendment to
Agreement:
(a) Exhibit A of the Agreement is
amended by amending and restating the definition of
“Revolving Maturity Date” to read in its entirety as
follows:
“Revolving
Loan Maturity Date” means June 9, 2022.
2. Amendment to
Addendum:
(a) Section 3 of the Addendum is
hereby amended and restated to read in its entirety as
follows:
3.
Payment of
Interest. Accrued and unpaid interest on the unpaid balance of the
Obligations outstanding under the Agreement shall be payable
monthly, in arrears, on the first day of each month, until maturity
(whether as stated herein, by acceleration, or otherwise). In the
event that any payment under this Addendum becomes due and payable
on any day which is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day, and, to the extent
applicable, interest shall continue to accrue and be payable
thereon during such extension at the rates set forth in this
Addendum. Interest accruing hereunder shall be computed on the
basis of a year of 360 days, and shall be assessed for the actual
number of days elapsed, and in such computation, effect shall be
given to any change in the applicable interest rate as a result of
any change in the Prime Referenced Rate on the date of each such
change.
3. 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.
4. Unless otherwise
defined, all initially capitalized terms in this Amendment shall be
as defined in the Agreement. The Agreement and Addendum, each as
amended hereby, each shall be and remains in full force and effect
in accordance with its terms and hereby is ratified and confirmed
in all respects. Except as expressly set forth herein, the
execution, delivery, and performance of this Amendment shall not
operate as a waiver of, or as an amendment of, any right, power, or
remedy of Bank under the Agreement or the Addendum, as in effect
prior to the date hereof.
5. Borrower waives,
discharges, and forever releases Bank, Bank’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 Borrower
or whether any such claims, causes of action, allegations or
assertions arose as result of Bank’s actions or omissions in
connection with the Loan Documents, or any amendments, extensions
or modifications thereto, or Bank’s administration of the
Obligations or otherwise. BORROWER WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542, AS IT MAY BE AMENDED FROM TIME
TO TIME, WHICH STATES:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY
HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
6. Borrower represents
and warrants that the representations and warranties contained in
the Agreement and the Addendum are true and correct in all material
respects as of the date of this Amendment, and that no Event of
Default has occurred and is continuing.
7. As a condition to
the effectiveness of this Amendment, Bank shall have received, in
form and substance satisfactory to Bank, the
following:
(a) this Amendment,
executed by Borrower;
(b) a
Certificate of the Chief Executive Officer of Borrower with respect
to incumbency and resolutions authorizing the execution and
delivery of this Amendment;
(c) a facility fee, in
the amount of $12,500, which fee is fully earned and
non-refundable, and which may be debited from Borrower’s
account;
(a) amendments to (i)
that certain Convertible Secured Subordinated Note Purchase
Agreement, dated November 14, 2007, and the Convertible Secured
Subordinated Promissory Notes issued thereunder, among Borrower and
the holders of such Convertible Secured Subordinated Promissory
Notes, extending the maturity date of such Convertible Secured
Subordinated Promissory Notes to no earlier than November 14, 2022,
duly executed by Borrower and the holders of such Convertible
Secured Subordinated Promissory Notes, (ii) that certain
Convertible Subordinated Note Purchase Agreement, dated as of
December 11, 2014, and the Convertible Subordinated Promissory
Notes issued thereunder, among Borrower and the holders of such
Convertible Subordinated Promissory Notes, extending the maturity
date of such Convertible Subordinated Promissory Notes to no
earlier than November 14, 2022, duly executed by Borrower and the
holders of such Convertible Subordinated Promissory Notes, (iii)
that certain Subordinated Promissory Note, dated March 9, 2018,
among Borrower and Advance Modernization Services, extending the
maturity date of such Subordinated Promissory Note to no earlier
than November 14, 2022, duly executed by Borrower and Advance
Modernization Services, and (iv) that certain Subordinated
Promissory Note, dated May 11, 2018, among Borrower and Cresco Ltd,
extending the maturity date of such Subordinated Promissory Note to
no earlier than November 14, 2022, duly executed by Borrower and
Cresco Ltd;
(b) all reasonable Bank
Expenses incurred through the date of this Amendment, which may be
debited from any of Borrower’s accounts; and
(c) such other
documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate.
8. 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.
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of page left blank intentionally – signature page
follows]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.
By:
/s/ Xxxx Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
Title:
CFO
COMERICA
BANK
By:
/s/ Xxxxxxx Xxxx
Name:
Xxxxxxx Xxxx
Title:
Vice President
