THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Agreement") is
entered into as of December 22, 2003, by and among CROSSHILL GEORGETOWN CAPITAL,
L.P. ("Lender"), whose address is 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxx, SOLUTION TECHNOLOGY INTERNATIONAL, INC.
a corporation organized and in good standing in the State of Delaware
("Borrower"), whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx 0, Xxxxxxxxx,
Xxxxxxxx 00000 and XXX XXXXXX, a resident of Xxxxxxx County, Maryland (the
"Principal").
RECITALS.
A. The Borrower and the Lender have entered into that certain Loan and
Security Agreement dated January 10, 2003, that certain First Amendment to Loan
and Security Agreement dated July 10, 2003 and that certain Second Amendment to
Loan and Security Agreement dated October 10, 2003 (as amended from time to
time, the " Loan Agreement"), pursuant to which the Lender has made a Committed
Revolving Line available to the Borrower in the maximum principal amount of
Seven Hundred Fifty Thousand Dollars ($750,000) (the "Revolving Line").
B. The Revolving Loan is secured by the Collateral described in the Loan
Agreement and the Intellectual Property Collateral described in that certain
Intellectual Property Security Agreement dated January 10, 2003 by and between
Borrower and Lender.
C. The Borrower is in default under of the Loan Agreement (as more fully
described in this Agreement) and has requested that the Lender waive such
defaults and extend the Revolving Maturity Date and the Lender has agreed on the
condition, among others, that this Agreement be executed and delivered by the
Borrower to the Lender.
D. Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower and the Lender do hereby agree as follows:
1. Recitals. The parties hereto acknowledge and agree that the above
Recitals are true and correct in all material respects and that the same are
incorporated herein and made a part hereof by reference.
2. Defined Terms. From and after the date hereof, the definition of
"Revolving Maturity Date" set forth in Section 13.1 of the Loan Agreement is
hereby amended and restated in its entirety as follows:
"Revolving Maturity Date" is March 31, 2004.
3. Outstanding Obligations, Existing Defaults. Borrower agrees that as of
the date hereof, the unpaid principal balance of the Obligations is $750,000,
accrued and unpaid interest on the Obligations and unpaid fees as of December 1,
2003 are $_______. In addition, the Borrower agrees that if the Existing Default
(as hereinafter defined) were not waived, the Lender would be entitled pursuant
to Section 9.2 of the Loan Agreement, to charge interest at the default rate
through March 31, 2004 in an amount of $12,500.40 (the "Default Interest").
Borrower acknowledges and agrees that all such sums are due to the Lender
without offset or defense of any kind or nature. Borrower further acknowledges
and agrees that it is unable to repay the Obligations when due at maturity and
that such failure constitutes an Event of Default under the Loan Documents (such
Event of Default being called, the "Existing Default").
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4. Warrants. In consideration of the Lender's agreement to enter into this
Agreement, the Borrower shall execute and deliver to the Lender on the date
hereof, a Warrant to Purchase Stock in the form of Exhibit B attached hereto
(the " Replacement Warrant"). Borrower represents and warrants to the Lender
that the Replacement Warrant is duly authorized by Borrower and all necessary
shareholder and board consent and approvals have been obtained and further that
there are sufficient shares issued and available to honor its obligations under
the Replacement Warrant. The Replacement Warrant shall be and constitute, for
all purposes of the Loan Documents, a "Loan Document".
5. Sale of Borrower. In consideration of the Lender's agreement to enter
into this Agreement, the Principal agrees that in the event the Obligations are
not repaid in full on or before the Revolving Maturity Date, at Lender's request
to use his best efforts to assist and cause Borrower and/or its assets to be
promptly sold on terms acceptable to Lender, at the expense of the Borrower;
provided however, in the event Lender requests Principal to travel to assist in
the sale of Borrower and/or its assets, Lender will advance any funds associated
with such travel to Principal.
6. Waiver. Upon satisfaction of each of the conditions precedent set forth
in Section 8 of this Agreement, the Lender agrees to waive the Default Interest
and the Existing Default.
7. Payment of Loan Fee. Borrower shall pay to Lender a fee in the amount
of Three Thousand Dollars ($3,000) (the "Loan Fee"), plus all out-of-pocket
expenses, including the Lender's attorneys' fees and expenses in the amount of
$2,400.00.
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8. Conditions Precedent. This Agreement shall become effective on the date
Lender receives the following documents, each of which shall be satisfactory in
form and substance to Lender:
(a) The fully executed Replacement Warrant;
(b) Proof that Borrower has paid all costs and expenses to Lender in
connection with this Agreement, including but not limited to, the Loan Fee; and
(c) Such other information, instruments, opinions, documents,
certificates and reports as Lender may deem necessary.
9. Representations. Borrower hereby confirms that the representations set
forth in Section 5 of the Loan Agreement, are true and correct as of the date
hereof and that other than the Existing Defaults, no Event of Default has
occurred or is continuing immediately prior to or upon the execution of this
Agreement.
10. Treatment of Events of Default and Waiver. If the Borrower or the
Principal shall fail to comply with the terms of any of their respective
representations, warranties, covenants or agreements contained herein or in the
Replacement Warrant, such failure shall immediately constitute an Event of
Default and shall immediately entitle the Lender without further notice of any
kind or nature to exercise all rights and remedies provided in the Loan
Documents, as well as all other rights and remedies available to the Lender
under the law, including without limitation, the right to accrue interest from
the date of such default at the rate provided for in Section 9.2 of the Loan
Agreement.
11. Counterparts. This Agreement may be executed in any number of
duplicate originals or counterparts, each of which duplicate original or
counterpart shall be deemed to be an original and all taken together shall
constitute one and the same instrument.
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12. Loan Documents; Governing Law; Etc. This Agreement is one of the Loan
Documents defined in the Loan Agreement and shall be governed and construed in
accordance with the laws of the Commonwealth of Virginia. The headings and
captions in this Agreement are for the convenience of the parties only and are
not a part of this Agreement.
13. No Defenses. Borrower agrees that, as of the date hereof, it has no
defenses against the obligations to pay any amounts under the Obligations. The
Borrower and the Principal each acknowledges and warrants that Lender has acted
in good faith and has conducted in a commercially reasonable manner its
relationships with Borrower in connection with this Agreement and in connection
with the Loan Documents, including the Loan Agreement and the Obligations, the
Borrower and the Principal each hereby waives and releases any claims to the
contrary.
14. Waiver and Release of Claims. (a) Borrower and the Principal signing
below (each of the foregoing being a "Releasing Party") hereby releases,
acquits, and discharges Lender and Lender's employees, agents, representative,
consultants, attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing hereinafter
called the "Released Parties"), from all actions and causes of action,
judgments, executions, suits, debts, claims, demands, liabilities, obligations,
damages, and expenses of any and every character, known or unknown, direct
and/or indirect, at law or in equity, of whatsoever kind or nature, whether
heretofore or hereafter arising, for or because of any matter or things done,
omitted or suffered to be done by any of the Released Parties prior to and
including the date of execution hereof, and in any way directly or indirectly
arising out of or in any way connect to this Agreement and the Loan Documents,
including, but not limited to, claims relating to any settlement negotiation
(all of the foregoing hereinafter called the "Released Matters"), but excluding
any causes of action arising from the gross negligence or willful misconduct of
the Lender. Each Releasing Party acknowledges that the agreements in this
section are intended to be in full satisfaction of all or any alleged injuries
or damages arising in connection with the Released Matters.
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(b) Each Releasing Party acknowledges that it has not relied, in executing
the release set forth in this section, upon any representations, warranties, or
conditions by Lender or any other entity except as are specifically set forth in
this Agreement.
(c) Nothing contained herein shall be construed at any time as an
admission by Lender of any liability to Borrower or any other entity.
(d) Each Releasing Party warrants to Lender that it has not purported to
transfer, assign, or otherwise convey any right, title or interest of such
Releasing Party in any Released Matter to any other entity, and that the
foregoing constitutes a full and complete release of all Released Matters.
15. Continuing Validity. Borrower and the Principal each understands and
agrees that in modifying the existing Obligations, Lender is relying upon
Borrower's representations, warranties, and agreements, as set forth in the Loan
Documents. Except as expressly modified pursuant to this Agreement, the terms of
the Loan Documents remain unchanged and in full force and effect. Lender's
agreement to modifications to the existing Obligations pursuant to this
Agreement in no way shall obligate Lender to make any future modifications to
the Obligations. Nothing in this Agreement shall constitute a satisfaction of
the Obligations. It is the intention of Lender and Borrower to retain as liable
parties all makers and endorsers of the Loan Documents, unless the party is
expressly released by Lender in writing. No maker, or endorser, will be released
by virtue of this Agreement. The terms of this Paragraph apply not only to this
Agreement, but also to all subsequent loan modification agreements.
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16. Modifications. This Agreement may not be supplemented, changed,
waived, discharged, terminated, modified or amended, except by written
instrument executed by the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
SOLUTION TECHNOLOGY INTERNATIONAL, INC.
By:/s/ Xxx X. Xxxxxx (Seal)
----------------------------------
Xxx X. Xxxxxx
President
PRINCIPAL:
/s/ Xxx X. Xxxxxx (Seal)
-------------------------------------
Xxx X. Xxxxxx
LENDER:
CROSSHILL GEORGETOWN CAPITAL, L.P.
By:/s/ Xxxxxxx X. Xxxxxx (Seal)
----------------------------------
Xxxxxxx X. Xxxxxx
Principal
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