OMNIBUS AMENDMENT AGREEMENT
Exhibit 10.7
EXECUTION VERSION
This OMNIBUS AMENDMENT AGREEMENT (this “Amendment”), dated as of February 26, 2019, is entered into by and among APPLIED DNA SCIENCES, INC., a Delaware corporation (the “Issuer”), APDN (B.V.I.) INC., a corporation organized under the laws of the British Virgin Islands (the “Guarantor”, and together with the Issuer, collectively, the “Grantors” and each a “Grantor”), DELAWARE TRUST COMPANY, a Delaware corporation, as collateral agent (together with its successors and assigns, in such capacity, the “Collateral Agent”) for the benefit of the Buyers (defined below) and each of the investors listed on Schedule I attached hereto (each, a “Buyer” and collectively, the “Buyers”; the Buyers and the Collateral Agent are collectively, together with their successors and assigns, collectively, the “Secured Parties”).
WITNESSETH:
WHEREAS, the Issuer and the Collateral Agent are parties to that certain Security Agreement, dated as of October 19, 2018 (as amended to date and as the same may be further amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), whereby the Issuer granted a security interest in substantially all of its tangible and intangible assets, whether real or personal property, now or hereafter acquired (the “Issuer Collateral”), to the Collateral Agent for the ratable benefit of the Secured Parties; and
WHEREAS, the Guarantor and the Collateral Agent are parties to that certain Guaranty and Security Agreement, dated as of October 19, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Guaranty and Security Agreement” and together with the Security Agreement, collectively, the “Security Agreements”), whereby the Guarantor granted a security interest in substantially all of its tangible and intangible assets, whether real or personal property, now or hereafter acquired (the “Guarantor Collateral”, and together with the Issuer Collateral, collectively, the “Collateral”), to the Collateral Agent for the ratable benefit of the Secured Parties; and
WHEREAS, the Collateral Agent, the Grantors and the investors party thereto as Buyers (the “Original Buyers”; each Buyer party hereto which is not an Original Buyer is a “New Buyer”) are parties that certain Collateral Agency Agreement, dated as of October 19, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Collateral Agency Agreement”), whereby, among other things, the Original Buyers appointed the Collateral Agent as the Secured Parties’ representative and agent with respect to the Collateral; and
WHEREAS, the Grantors have requested and the Secured Parties, by their execution and acknowledgement hereof, have each agreed, subject to the terms of this Amendment, to amend each of the Security Agreement, the Guaranty and Security Agreement and the Collateral Agency Agreement (each a “Transaction Document” and collectively, the “Transaction Documents”), as provided herein.
NOW, THEREFORE, the parties hereto hereby agree as follows, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound:
1. Definitions. Capitalized terms used and not otherwise defined in this Amendment shall have the respective meanings given to such terms in the applicable Transaction Document.
2. Joinder. Each New Buyer hereby becomes a Buyer under the terms of the Collateral Agency Agreement and any other Transaction Document (as defined in the Collateral Agency Agreement) to which any Buyer is a party (collectively, the “Buyer Documents”), and appoints the Collateral Agent as provided in Section 1 of the Collateral Agency Agreement. Each New Buyer agrees that it hereby is, and shall be deemed to be, and assumes the obligations of, a “Buyer” under each of the Buyer Documents, including the joint and several indemnification obligations in the Collateral Agency Agreement. Each New Buyer hereby agrees to perform, comply with, and be subject to and bound by each of the terms and provisions of each of the Buyer Documents jointly and severally with the other Buyers party thereto.
3. Amendment to the Collateral Agency Agreement.
(a) the first “WHEREAS” clause of the Collateral Agency Agreement is hereby amended and restated, in its entirety, as follows:
“WHEREAS, the Issuer and the Buyers are parties to (i) that certain Securities Purchase Agreement, dated as of August 31, 2018 (the “August Securities Purchase Agreement” or (ii) that certain Securities Purchase Agreement, dated as of November 29, 2018 (the “November Securities Purchase Agreement” and together with the August Securities Purchase Agreement, collectively, the “Securities Purchase Agreement”), and certain other agreements, documents and instruments executed and delivered in connection therewith (together the Securities Purchase Agreement and this Agreement, collectively, the “Transaction Documents”), pursuant to which the Issuer shall be required to sell, and the Buyers shall purchase or have rights to purchase, on a several and not joint basis, the principal amount of the notes issued pursuant thereto (as such notes may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Notes”).”
(b) Section 10(a) (Extension) of the Collateral Agency Agreement is hereby amended and restated, in its entirety, as follows:
“The Buyers and the Issuer hereby agree to extend all delivery dates set forth in the Securities Purchase Agreement for the granting of liens securing the Notes and perfection of the security interests contemplated therein for completion within a reasonable period of time following the execution thereof, as determined by the Issuer and the Collateral Agent in their reasonable discretion; provided, however, that, all of the Buyers may agree in writing to instruct the Collateral Agent not to perfect its security interest, for the benefit of the Secured Parties, in certain types of Collateral if, in the reasonable judgment of all the Buyers, the expense or process for achieving such perfection is determined to be unduly burdensome.”
(c) Schedule 1 of the Collateral Agency Agreement is hereby amended and restated, in its entirety in the form of Schedule 1 attached hereto.
4. Amendment to the Security Agreement.
(a) the Preamble of the Security Agreement is hereby amended and restated, in its entirety, as follows:
“SECURITY AGREEMENT (as amended, supplemented, amended and restated or otherwise modified from time to time, this “Agreement”) dated October 19, 2018 made by APPLIED DNA SCIENCES, INC., a Delaware corporation with headquarters located at 00 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 (the “Grantor”), in favor of DELAWARE TRUST COMPANY, a Delaware corporation, as collateral agent (together with any successor collateral agent, in such capacity, the “Collateral Agent”) for the benefit of the investors listed on the Schedule of Buyers (each a “Buyer” and collectively, the “Buyers”; the Buyers and the Collateral Agent are collectively, with their respective successors and assigns, the “Secured Parties”)) set forth in (i) the Securities Purchase Agreement, dated as of August 31, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “August Securities Purchase Agreement”), and (ii) the Securities Purchase Agreement, dated as of November 29, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “November Securities Purchase Agreement” and together with the August Securities Purchase Agreement, collectively, the “Securities Purchase Agreement”), and the other Secured Parties.”
(b) the second WHEREAS clause in each of Exhibits A and B of the Security Agreement is hereby amended and restated, in its entirety, as follows:
“WHEREAS, Grantor is party to the (i) Securities Purchase Agreement, dated as of August 31, 2018 (the “August Securities Purchase Agreement”) and (ii) the Securities Purchase Agreement, dated as of November 29, 2018 (the “November Securities Purchase Agreement” and together with the August Securities Purchase Agreement, collectively, the “Securities Purchase Agreement”), in each case, with the Buyers party thereto.”
5. Amendment to the Guaranty and Security Agreement.
(a) the Preamble of the Guaranty and Security Agreement is hereby amended and restated, in its entirety, as follows:
“GUARANTY AND SECURITY AGREEMENT (as amended, supplemented, amended and restated or otherwise modified from time to time, this “Agreement”) dated October 19, 2018 made by APDN (B.V.I.) INC., a corporation organized under the laws of the British Virgin Islands (the “Grantor”), in favor of DELAWARE TRUST COMPANY, a Delaware corporation, as collateral agent (together with any successor collateral, in such capacity, the “Collateral Agent”) for the benefit of the investors listed on the Schedule of Buyers (each a “Buyer” and collectively, the “Buyers”; the Buyers and the Collateral Agent are collectively, with their respective successors and assigns, the “Secured Parties”)) set forth in (i) the Securities Purchase Agreement, dated as of August 31, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “August Securities Purchase Agreement”) and (ii) the Securities Purchase Agreement, dated as of November 29, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “November Securities Purchase Agreement” and together with the August Securities Purchase Agreement, collectively, the “Securities Purchase Agreement”), and the other Secured Parties.”
(b) the second WHEREAS clause in each of Exhibits A and B of the Guarantor IP Security Agreement is hereby amended and restated, in its entirety, as follows:
“WHEREAS, Grantor is a wholly owned subsidiary of APPLIED DNA SCIENCES, INC., a Delaware corporation (the “Company”), and the Company is party to the (i) Securities Purchase Agreement, dated as of August 31, 2018 (the “August Securities Purchase Agreement”) and (ii) the Securities Purchase Agreement, dated as of November 29, 2018 (the “November Securities Purchase Agreement” and together with the August Securities Purchase Agreement, collectively, the “Securities Purchase Agreement”), in each case, with the Buyers party thereto.”
6. Ratification. This Amendment shall be construed in connection with and as a part of each of the Security Agreement, the IP Security Agreement, the Guaranty and Security Agreement, the Guarantor IP Security Agreement and Collateral Agency Agreement, as applicable, and, except as expressly amended by this Amendment, all terms, conditions, covenants, representations and warranties contained in the Security Agreement, the IP Security Agreement, the Guaranty and Security Agreement, the Guarantor IP Security Agreement and Collateral Agency Agreement, respectively, are hereby ratified and shall be and remain in full force and effect. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment may refer to the Security Agreement, the IP Security Agreement, the Guaranty and Security Agreement, the Guarantor IP Security Agreement and Collateral Agency Agreement, as applicable, without making specific reference to this Amendment, but nevertheless all such references shall include this Amendment.
7. Parties Bound. This Amendment shall be binding on and inure to the benefit of (i) each Grantor and (ii) the Secured Parties, as well as each of their respective heirs, executors, administrators, legal representatives, successors and assigns, except as otherwise expressly provided for herein.
8. Counterparts and Signatures. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and all of which taken together shall constitute but one and the same instrument. The transmission or receipt of a facsimile or similar communication being a reproduction of a party’s signature or initial shall produce the same legal result as the transmission or receipt of an original signature or initial.
9. Severability of Provisions. Any provision of this Amendment which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
10. Section Headings. The Section headings used in this Amendment are for convenience only and shall not affect the construction of this Amendment.
11. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
12. Instruction to Collateral Agent. Each of the Buyers, by its acknowledgement hereof, hereby directs the Collateral Agent to execute and deliver this Amendment, and authorizes the Collateral Agent to take action as agent on its behalf and to exercise such powers and discretion under the Security Agreement, the Guaranty and Security Agreement and the Collateral Agency Agreement and the other Transaction Documents (as defined in the Collateral Agency Agreement) as are delegated to the Collateral Agent by the terms thereof, together with such powers and discretion as are reasonably incidental. This Section 12 is solely for the benefit of the Collateral Agent and the Buyers and neither the Grantor nor any other Person shall have rights as a third party beneficiary of the provisions in this Section 12.
13. Costs and Expenses. Without limiting any expense or indemnity provisions set forth in the Security Agreement, the Guaranty and Security Agreement and the Collateral Agency Agreement or any other Transaction Document, the Grantor agrees to pay on demand all reasonable and documented out-of-pocket expenses, fees, and disbursements (including reasonable and documented attorneys’ fees and expenses) of the Collateral Agent and the Buyers in connection with the negotiation, preparation, execution, delivery and administration of this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first above written.
| GRANTORS: | ||
| APPLIED DNA SCIENCES, INC., a Delaware corporation | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Print Name: Xxxx Xxxxxxx, CPA | ||
| Its: Chief Financial Officer | ||
| APDN (B.V.I.) INC., a corporation formed under the laws of the British Virgin Islands | ||
| By: | /s/ Xxxxx X. Xxxxxxx | |
| Print Name: Xxxxx X. Xxxxxxx | ||
| Its: Authorized Signatory | ||
[Signatures Continue on Following Page]
Signature Page to Omnibus Amendment Agreement
| COLLATERAL AGENT | ||
| DELAWARE TRUST COMPANY, | ||
| as Collateral Agent | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| Title: Vice President | ||
[Signatures Continue on Following Page]
Signature Page to Omnibus Amendment Agreement
ACKNOWLEDGED AND CONSENTED TO BY BUYERS:
| By: | /s/ Xxxxx X. Xxxxxxx | |
| Print Name: Xxxxx X. Xxxxxxx | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Print Name: Xxxxxx Xxxxxx | ||
| By: | /s/ Yavoc Shamash | |
| Print Name: Yavoc Shamash | ||
| By: | /s/ Xxxxxx Xxxxxx 2/13/19 | |
| Print Name: Xxxxxx Xxxxxx | ||
| By: | /s/ Xxxxxxxxx Xxxxxxx Xxxxxxxx | |
| Print Name: Xxxxxxxxx Xxxxxxx Xxxxxxxx | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Print Name: Xxxxx Xxxxxxx | ||
| By: | /s/ Xxxxxxx Xxxxxxxxxx 2/11/19 | |
| Print Name: Xxxxxxx Xxxxxxxxxx | ||
| By: | /s/ J van Eeden | |
| Print Name: Xxxxxxxx van Eeden | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Print Name: Xxxx Xxxxxxx | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Print Name: Xxxxx Xxxxxx | ||
Signature Page to Omnibus Amendment Agreement
ACKNOWLEDGED AND CONSENTED TO BY BUYERS (continued):
| Delabarta II | ||
| By: | /s/ Xxxx Xxxxxx III | |
| Print Name: Xxxx X. Xxxxxx III | ||
| Title: President | ||
| The Xxxxxxx Living Trust Dated April 7, 1995 | ||
| By: | /s/ Xxx X. Xxxxxxx | |
| Print Name: Xxx X. Xxxxxxx | ||
| Title: Trustee | ||
Signature Page to Omnibus Amendment Agreement
SCHEDULE I
SCHEDULE OF BUYERS
| Buyer | Address for Notices | |
| Xxxxx X. Xxxxxxx |
0 Xxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 and 00 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 | |
| Xxxxxx Xxxxxx | 0 Xxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000 | |
| Delabarta II | c/o Delaware Corporate Management, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000 | |
| Yavoc Shamash | 0 Xxxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000 | |
| Xxxxxx Xxxxxx | 00 Xxxxxxx Xxxx, Xxxxxx Xxxx, XX 00000 | |
| Xxxxxxxxx Xxxxxxx Xxxxxxxx | 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000 | |
| The Xxxxxxx Living Trust Dated April 7, 1995 | 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, XX 00000 | |
| Xxxxx Xxxxxxx | 0000 Xxxxxxx Xxx, Xxx Xxxxxxxx, XX 00000 | |
| Xxxxxxx Xxxxxxxxxx | 00000 Xxxxxx Xxxx Xxxx, Xxxxxx, XX 00000 | |
| Xxxxxxxx van Eeden | 000 Xxxxxxxx Xxx, Xxxxx 0, Xxxxxx, XX 00000 | |
| Xxxx Xxxxxxx | X.X. Xxx Xxxx Xxxxxxx, XX 00000 | |
| Xxxxx Xxxxxx | 00 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 |
Schedule I to Omnibus Amendment Agreement
