Exhibit 10.2 (h)
This Agreement made and entered as of with effect from the 2nd day of
March 2001 (the "Effective Date"), by and between NDC, Xxxxxxx & Xxxxxxxx Co AB
("NDC"), a corporation organized and existing under the laws of the Kingdom of
Sweden with its principal office in XX-000 00 Xxxx, Xxxxxx and NDC Automation,
Inc. ("NDCA"), a corporation organized and existing under the laws of the state
of Delaware in the United States of America, with its principal office in 0000
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, XXX.
WHEREAS, NDCA, as borrower, and National Bank of Canada and National
Canada Business Corp., as lenders (collectively, the "Lenders"), entered into a
certain Inventory and Accounts Receivable Loan and Security Agreement dated
February 28, 1997 ( the "Loan Agreement"); and
WHEREAS, the payment of NDCA's obligations under the Loan Agreement is
collateralized by a $450,000 letter of credit issued on behalf of NDC by
Xxxxxx-Nordenbanken Group (the "Bank") for the benefit of the Lenders (the
"Letter of Credit"); and
WHEREAS, as collateral security for the payment of NDCA's obligations
to NDC in the event, among other things, that any default in payment of NDCA's
obligations under the Loan Agreement were to be satisfied via a drawing under
the Letter of Credit, NDCA executed and delivered to NDC a Deed of Trust dated
June 29, 1998 (the "Deed of Trust") which granted to NDC a lien upon the land
and building owned by NDCA and known as and by the street address 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Premises"); and
WHEREAS, the Lenders assigned all of their right, title and interest in
and with respect to the Loan Agreement to Summit Business Capital Corp.
("Summit") and NDC caused the Letter of Credit to be amended to designate Summit
as the beneficiary thereunder in connection therewith; and
WHEREAS, NDC, as licensor, and NDCA, as licensee, entered into and
executed that certain Licensing Agreement dated as of the 30th day of November,
2000 (the "License Agreement") pursuant to which, among other things, NDCA's
indebtedness to NDC for the payment of certain obligations was reduced and
extended; and
WHEREAS, NDCA desires to sell the Premises free and clear of all liens,
claims and encumbrances; and
WHEREAS, NDC, is willing to release the lien it has with respect to the
Premises pursuant to the Deed of Trust in consideration for NDCA's performance
of the obligations imposed upon it pursuant to the terms and conditions set
forth in this Agreement; and
WHEREAS, NDCA is willing to perform such obligations, pursuant to the
terms, and subject to the conditions hereinbelow set forth,
NOW, THEREFORE, in consideration of these premises, the terms and
conditions hereinbelow set forth, and other good and valuable consideration, the
parties agree as follows:
1. Release of NDC's Lien Upon the Premises. NDC hereby agrees to
deliver to NDCA at the closing of its sale of the Premises such instrument or
instruments, executed in recordable form, as shall be necessary to terminate the
Deed of Trust and the lien upon the Premises created thereby.
2. NDCA's Obligations. In consideration for NDC's termination of the
Deed of Trust, NDCA hereby covenants and agrees that it will do the following:
(a) Grant of General Security Interest. On the closing date of
the sale of the Premises (the "Closing Date"), NDCA shall execute and deliver to
NDC a security agreement granting to NDC a first priority lien on and security
interest in all of NDCA's accounts receivable (except for any accounts
receivable that NDCA is contractually prohibited to encumber). Such agreement
shall be in such form, and shall contain such terms and conditions as shall be
mutually acceptable to NDC, NDCA and their respective attorneys and shall be
accompanied by the appropriate number of fully executed UCC-1 financing
statements. The security interest to be granted to NDC pursuant to said security
agreement shall collateralize the payment of all sums due and owing by NDCA to
NDC under the License Agreement including, but not limited to, the Restructured
Principal (as such term is defined in Section 5.25 of the License Agreement),
all interest accruing thereon, and all other charges payable by NDCA in the
event that it shall default in the payment of such Restructured Principal and
interest. The security interest to be granted to NDC pursuant to the provisions
of this Section 2(a) shall be terminated on the date when the final installment
of Restructured Principal, together with all interest accruing thereon, shall be
paid in full, provided that (i) such final payment shall be made on or before
June 30, 2002, and (ii) on the date when such final payment shall be made, NDCA
shall not be in arrears with respect to its trade payables obligations to NDC,
i.e., none of such obligations shall be outstanding for a period in excess of 30
days from the applicable invoicing date. In the event that the conditions set
forth in the immediately preceding sentence shall not be satisfied, the security
interest shall continue until such time as NDCA shall no longer be indebted to
NDC.
(b) Payment of All Sums Due and Owing to Summit. On the
Closing Date, upon completion of the closing of the sale of the Premises, NDCA
shall (i) employ such portion of the proceeds that it shall receive from the
sale of the Premises as shall be required to pay to Summit all sums due and
owing under the Loan Agreement and (ii) cancel and terminate the Loan Agreement.
Such payment shall be made by FedWire or SWIFT transfer to Summit. As soon
thereafter as is reasonably possible, NDCA shall cause Summit to return the
Letter of Credit to NDC or to the Bank for cancellation.
(c) Payment of Trade Payables to NDC. On the Closing Date,
upon completion of the closing of the sale of the Premises, NDCA shall employ
such portion of the proceeds that it shall receive from the sale of the Premises
as shall be required to pay to NDC the
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sum of SEK 750,000. Such payment shall be credited against NDCA's trade payables
indebtedness to NDC. Such payment shall be made by FedWire or SWIFT transfer to
the account maintained by NDC at Nordenbanken, Gothenburg.
(d) Change of NDCA's Name. NDCA shall eliminate the letters
"NDC" from its corporate name, and shall undertake all actions that shall be
required to obtain the approval of its stockholders at the annual meeting to be
held in or about May, 2002 to amend NDCA's certificate of incorporation to
formalize such change of name. Upon receipt of such approval, NDCA shall file a
certificate of amendment to its certificate of incorporation formalizing such
change of name. Not later than three months from the date of this Agreement,
NDCA shall file such instruments and documents with all appropriate governmental
authorities as shall be necessary for it to conduct business under the new name
by which it shall become formally known upon the filing of the above-mentioned
certificate of amendment. During the 18 month period following the date of this
Agreement, NDCA may employ the phrase "formerly known as NDC Automation, Inc."
or similar language in or on all correspondence, brochures, promotional
literature, advertisements, contracts, web site pages, URLs, e-mail addresses,
paper based and video based images and other documents and literature, provided
that, not later than December 31, 2002, NDCA shall stop employing the use of the
letters "NDC" in any of the foregoing manners or in any other manner.
3. Amendment of the License Agreement. Upon completion of the
obligations imposed upon NDCA pursuant to the provisions of Sections 2(a), (b)
and (c) hereof, the License Agreement shall thereupon be deemed to have been
amended to delete therefrom Section 5.14.1.6 thereof.
4. Miscellaneous.
(a) No Assignment. Neither party shall assign this Agreement,
in whole or in part, without the prior written consent of the other party. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and permitted assigns.
(b) Waiver. No party shall be deemed to have waived any of its
rights, powers or remedies hereunder unless such waiver is embodied in a writing
executed by such party. The waiver by either party of any breach or default by
the other party in the performance of any obligation hereunder shall not
constitute a waiver of any subsequent breach or default.
(c) Amendments. This Agreement may not be amended or modified
except by a written amendment signed by the parties.
(d) Governing Law; Exclusive Jurisdiction. This Agreement, and
all the rights and duties of the parties arising from or relating in any way to
the subject matter of this Agreement or the transaction(s) contemplated by it,
shall be governed by, construed and enforced in accordance with the laws of the
State of North Carolina (excluding any conflict of laws provisions of the State
of North Carolina that would refer to and apply the substantive laws of another
jurisdiction). Any suit or proceeding relating to this Agreement, including
arbitration
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proceedings, shall be brought in the state or federal courts located in or
nearest to Charlotte, North, Carolina.
(e) Notices. Any written notice or approval required or
permitted to be delivered pursuant to this Agreement will be in writing and will
be deemed delivered: (a) upon delivery if delivered in person; (b) three (3)
business days after deposit in the United States mail, registered or certified
mail, return receipt requested, postage prepaid; (c) upon transmission if sent
via telecopier, with a confirmation copy sent via overnight mail; (d) one (1)
business day after deposit with a national overnight courier; (e) upon
transmission if sent via e-mail with a telecopy sent the same day, in each case
addressed to either NDC or NDCA to their respective addresses listed on the
first page of this Agreement (or to such other address as may be specified upon
notice).
(f) Severability. To the extent that any law, statute, treaty
or regulation by its terms as determined by a court, tribunal or other
governmental authority of competent jurisdiction, is in conflict with the terms
of this Agreement, the conflicting terms of this Agreement shall be superseded
only to the extent necessary by the terms required by such law, statute, treaty
or regulation. If any provision of this Agreement shall be otherwise unlawful,
void, or for any reason unenforceable, then that provision shall be enforced to
the maximum extent permissible so as to effect the intent of the parties. In
either case, the remainder of this Agreement shall continue in full force and
effect.
(g) Counterparts. This Agreement (and any amendments hereto)
may be executed in multiple counterparts, all of which together shall constitute
one original document.
(h) Agreement Executed by Facsimile. This Agreement may be
executed as facsimile originals and each copy of this Agreement bearing the
facsimile transmitted signature of the authorized representatives of each of the
parties shall be deemed to be an original. Notwithstanding the validity of the
facsimile originals, it is intended that two copies of this Agreement will be
manually executed by each of the parties and delivered to the other hereunder.
Upon receipt by each party of the manually executed original, such manually
executed original will replace the facsimile original and the facsimile original
will no longer have any force or effect.
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(i) Entire Agreement. This Agreement and the exhibits hereto
embody the entire agreement between the parties relating to the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
the signatures of their respective duly authorized officers or representatives
as of and with effect from, the Effective Date.
NDC, Xxxxxxx & Xxxxxxxx Co AB
By: /s/ Jan Jutander
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NDC Automation, Inc.
By: /s/Xxxxxx Xxxxxxx
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