AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.14
AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 (the "Amendment") dated as of February 11, 2013 is between PAR TECHNOLOGY CORPORATION, a Delaware corporation (the "Borrower"), JPMORGAN CHASE BANK, N.A., as Administrative Agent ("Administrative Agent"), and JPMORGAN CHASE BANK, N.A., NBT BANK, N.A., and ALLIANCE BANK, N.A. (collectively, the "Lenders").
RECITALS:
A. The Borrower, Administrative Agent and Lenders are parties to an Amended and Restated Credit Agreement dated as of June 6, 2011, as amended by an Amendment No. 1 dated as of July 29, 2011 (the "Credit Agreement").
B. The Borrower has requested that the definition of EBITDA in the Credit Agreement be amended to add back to Net Income, for the purposes of calculating EBITDA, (a) extraordinary or non-recurring non-cash expenses, charges or losses, and (b) certain litigation expenses incurred in the fourth quarter of 2012.
C. The Lenders are willing to allow the Borrower to amend the definition of EBITDA upon the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1 Definitions. All capitalized terms used in this Amendment, which are not otherwise defined, shall have the meanings given to those terms in the Credit Agreement.
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2
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Amendment to Credit Agreement.
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2.1 The definition of EBITDA set forth in the Credit Agreement is amended to read as follows:
"EBITDA" means, for any period, Net Income for such period plus (a) without duplication and to the extent deducted in determining Net Income for such period, the sum of (i) Interest Expense for such period, (ii) income tax expense for such period, (iii) all amounts attributable to depreciation and amortization expense for such period and (iv) extraordinary or non-recurring non-cash expenses, charges or losses, minus (b) without duplication and to the extent included in Net Income, (i) all amounts attributable to any reappraisal, revaluation or write-up of assets, and (ii) any extraordinary or non-recurring gains or income and any non-cash items of income for such period, all calculated for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
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provided that, in calculating EBITDA for any period that includes the fourth quarter of 2012, the Borrower may add back to Net Income extraordinary non-recurring cash expenses incurred in the fourth quarter of 2012 relating to the defense and settlement of the litigation entitled Ameranth, Inc. v. Par Technology Corp., et al. (Case #: 2:10-cv-294 filed in United States District Court, Eastern District of Texas, Marshall Division) and Ameranth, Inc. v. PAR Technology Corp. and ParTech, Inc. (Case #: 2:12-cv-164 filed in United States District Court, Eastern District of Texas, Marshall Division) in an amount not to exceed $1,500,000.
3 Representations and Warranties. The Borrower represents and warrants to the Lenders that the following statements are true, correct and complete:
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3.1
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Each of the representations and warranties made by the Loan Parties in the Credit Agreement is true and correct on and as of the date of this Amendment.
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3.2
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No Default or Event of Default has occurred and is continuing.
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3.3
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This Amendment has been duly and validly authorized, executed and delivered by the Borrower.
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3.4
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This Amendment constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral and written communications, memoranda, proposals, negotiations, discussions, term sheets and commitments with respect to the subject matter hereof, except as expressly provided herein, no other changes or modifications to the Credit Agreement are intended or implied by this Amendment and in all other respects the Credit Agreement is hereby specifically ratified, restated and confirmed as of the date of this Amendment. To the extent that any provision of the Credit Agreement conflicts with a provision of this Amendment, the provision of this Amendment shall control.
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4 Conditions to Effectiveness of Amendment. This Amendment shall become effective only when and if each of the following conditions is satisfied:
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4.1
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The Administrative Agent shall have received a counterpart of this Amendment duly executed and delivered by the Borrower, the Loan Guarantors, the Administrative Agent, and the Majority Lenders.
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4.2
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The Borrower shall have paid all invoices presented to the Borrower for expense reimbursements due to the Administrative Agent pursuant to Section 9.03 of the Credit Agreement in connection with the preparation and negotiation of this Amendment.
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2108024.2
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Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page to this Amendment by facsimile transmission or scanned and electronically mailed shall be effective as delivery of a manually executed counterpart.
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2108024.2
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly executed as of the day and year first above written.
PAR TECHNOLOGY CORPORATION
By: ________________________________________________________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as Lender
By: _________________________________________________________________________________________
Name: Xxxx X. Xxxxxxx
Title: Underwriter III
NBT BANK, N.A., as Lender
By: _________________________________________________________________________________________
Name:
Title:
ALLIANCE BANK, N.A., as Lender
By: ________________________________________________________________________________________
Name:
Title
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The following Persons, in their capacities as Loan Guarantors under the Credit Agreement, hereby consent to the foregoing Amendment No. 2.
PARTECH, INC.
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
PAR XXXXXXXX-XXXXXX SYSTEMS, INC.
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
PAR GOVERNMENT SYSTEMS CORPORATION
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
ROME RESEARCH CORPORATION
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
PAR-XXXX CORPORATION
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
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AUSABLE SOLUTIONS, INC.
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
XXXXXXXX-XXXXXX INTERNATIONAL, LLC
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
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2108024.2
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