EXHIBIT 10.14
2003 AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENTS ("2003 Amendment"), dated as of February
13, 2003, is made by and among Escalon Medical Corp (the "Borrower"), Escalon
Vascular Access, Inc., Escalon Pharmaceutical, Inc. Sonomed, Inc., and Escalon
Digital Vision, Inc. (Collectively, the "Guarantors; together with the Borrower,
the "Obligors") and Spring Street Capital, L.L.C. (the "Lender or Bank").
BACKGROUND
WHEREAS, PNC Bank, National Association, ("PNC") and the Borrower are
parties to various agreements including a Letter Agreement dated November 16,
2001, pursuant to which PNC extended to the Borrower a Line of Credit and a Term
Note, (the "Loan Agreements");
WHEREAS, the Lender has purchased the Loan Agreements from PNC; and
WHEREAS, the parties agree that the current outstanding amount for the Line
of Credit is $1,475,000 and the current outstanding amount of the Term Note is $
5,850,000 for a total debt outstanding to the Lender of $ 7,325,000.
WHEREAS, Guarantors acknowledge and agree that each Guaranty and Suretyship
Agreement heretofore executed by the Guarantor in favor of PNC shall remain in
full force and effect and is hereby reaffirmed in favor of Lender.
WHEREAS, Lender and Borrower have agreed to amend certain terms and
conditions of the Loan Agreements to make certain other changes as hereinafter
set forth.
NOW, THEREFORE, in consideration of the promises and mutual agreements
herein contained, the parties hereto, intending to be legally bound hereby,
agree to further amend the Loan Agreements as herein stated.
32
1. Effect of Prior Agreements.
This 2003 Amendment is intended to amend the Loan Agreements, as it has
been in effect to the date hereof, and all references after the date hereof to
the Loan Agreements shall mean the Loan Agreements as amended hereby. All
capitalized terms used herein as defined terms shall have the meanings ascribed
to them in the Loan Agreements unless herein provided to the contrary.
2. Amendments.
(a) Article 9 c. (i)(b) of the Letter Agreement is hereby amended as
follows:
(i)(b) Current Maturities plus interest expense plus tax expense,
of not less than 1.00 to 1.00, all determined for the four fiscal
quarters then ending.
(b) Article 9 f. of the Letter Agreement is hereby amended as follows:
f. No Obligor, without the prior written consent of the Bank,
will liquidate, merge or consolidate with any person, firm,
corporation or other entity, or sell, lease, transfer ...
(c) Article 9 h. (i) of the Letter Agreement is hereby amended as
follows:
(i) loans, advances or investments in another Obligor, or future
wholly owned subsidiary,
(d) Article 9 l. of the Letter Agreement is hereby amended as follows:
Obligor will cause any new subsidiary to, (i) execute and deliver
to the Bank a Guaranty and Suretyship Agreement in a form similar
to that previously executed by the Guarantors, and (ii) execute a
Security Agreement (including intellectual property riders)
similar to those executed on the date hereof by the Guarantor. In
addition, the stock of any such new subsidiary shall be pledged
to the Bank pursuant to documentation reasonably acceptable to
the Bank and the certificates representing such stock shall be
delivered to the Bank with appropriate stock powers.
(e) Article 11. of the Letter Agreement is hereby deleted in its
entirety.
33
(f) Article 12. of the Letter Agreement is hereby amended to include
the following:
Ninety (90) days after June 30th of each year Borrower will
determine if actual EBITDA has exceeded budgeted EBITDA. In such
event 50% of the funds that exceeded budgeted EBITDA shall be
paid to Lender to reduce the balance of the Term Note. (See an
example on Exhibit 1 attached hereto.) If Actual EBITDA is not in
excess of Budgeted EBITDA no additional principal payments shall
be paid to the Lender.
(g) Article 8. of the Term Note is hereby amended as follows:
8. RIGHT OF SETOFF. In the Event of Default, in addition to all
liens upon and rights of setoff against the money, securities or
other property of the Borrower given to the Bank by law, the Bank
shall have, with respect to the Borrower's obligations to the
Bank under this Note and to the extent permitted by law, a
contractual possessory security interest in and a contractual
right of setoff against, and the Borrower hereby assigns,
conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all deposits,
moneys, securities and other property of the Borrower now or
hereafter in the possession of or on deposit with, or in transit
to, the Bank whether held in a general or special account or
deposit, whether held jointly with someone else, or whether held
for safekeeping or otherwise, excluding, however, all XXX, Xxxxx,
and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to the
Borrower. Every such right of setoff shall be deemed to have been
exercised immediately upon the occurrence of an Event of Default
hereunder without any action of the Bank, although the Bank may
enter such setoff on its books and records at a later time.
(h) Exhibit A of the Term Note is hereby amended and restated to read
in its entirety as follows:
Exhibit A
DATE AMOUNT
March 1, 2003 300,000
June 1, 2003 300,000
September 1, 2003 300,000
December 1, 2003 300,000
March 1, 2004 350,000
June 1, 2004 350,000
September 1, 2004 350,000
December 1, 2004 350,000
March 1, 2005 400,000
June 1, 2005 400,000
September 1, 2005 2,450,000
34
(i) Article 9. of the Line of Credit is hereby amended as follows:
9. RIGHT OF SETOFF. In the Event of Default, in addition to all
liens upon and rights of setoff against the money, securities or
other property of the Borrower given to the Bank by law, the Bank
shall have, with respect to the Borrower's obligations to the
Bank under this Note and to the extent permitted by law, a
contractual possessory security interest in and a contractual
right of setoff against, and the Borrower hereby assigns,
conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all deposits,
moneys, securities and other property of the Borrower now or
hereafter in the possession of or on deposit with, or in transit
to, the Bank whether held in a general or special account or
deposit, whether held jointly with someone else, or whether held
for safekeeping or otherwise, excluding, however, all XXX, Xxxxx,
and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to the
Borrower. Every such right of setoff shall be deemed to have been
exercised immediately upon the occurrence of an Event of Default
hereunder without any action of the Bank, although the Bank may
enter such setoff on its books and records at a later time.
3. Representations, Warranties and Covenants. The Borrower hereby affirms
and reaffirms to the Lender all representations and warranties made under the
Loan Agreements and confirm that all are true and correct as of the date hereof
(other than representations and warranties made as of a specific date). The
Borrower further represent and warrant that it has the authority and legal right
to execute, deliver and carry out the terms of this 2003 Amendment, that such
actions were duly authorized by its Board of Directors (or equivalent body),
that the officers executing this 2003 Amendment on its behalf were similarly
authorized and empowered, and that this 2003 Amendment does not contravene any
provision of its certificates of incorporation, by-laws, operating agreement or
other organizational documents, or of any contract or agreement to which it is a
party or by which it or any of its respective properties are bound. Borrower
hereby affirms and reaffirms to the Lender all of the covenants contained in the
Loan Agreements, as amended hereby, and agrees to abide thereby until all of the
Obligations
35
to the Lender are paid in full. The Borrower represent and warrant that the Loan
Agreements, as amended hereby, and the other Loan Documents are binding and
enforceable against the Borrower and that the Borrower have no defenses,
counterclaims, or set-offs to their obligations thereunder.
4. Conditions. To induce the Lender to enter into this 2003 Amendment, the
Borrower agrees as follows:
(a) The Borrower shall deliver to the Lender this 2003 Amendment and
all such other documents, duly executed by the Borrower, as the Lender may
reasonably require.
(b) The Borrower shall deliver to the Lender certified resolutions of
its Board of Directors authorizing the execution of this 2003 Amendment.
(c) The Borrower shall deliver any and all other documents, agreements
and certificates reasonably requested by the Lender to carry out the
intentions of this 2003 Amendment.
5. Further Actions. The Borrower hereby agrees to cooperate and join with
the Lender, at its own expense, in taking all such further actions as the
Lender, in its reasonable judgment, shall deem necessary to reasonably
effectuate the provisions of the Loan Documents, as amended hereby.
6. Continuation of Security Interest. The Borrower hereby confirms and
acknowledges that the security interest granted to the Lender pursuant to the
Security Agreements secures the Obligations of the Borrower under the Loan
Agreements, as amended through the date hereof and as the Loan Agreements may be
further amended from time to time, and under the Term Note, as amended through
the date hereof, in addition to any and all other Obligations of the Borrower to
the Lender which are secured thereby.
7. Reaffirmation and Extension of Agreement. Except as modified by the
terms hereof, all of the terms and conditions of the Loan Agreements and all
other Loan Documents are hereby affirmed and shall continue in full force and
effect.
8. Effective Date. This 2003 Amendment shall be effective as of the date
first written above.
9. Governing Law. This 2003 Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and shall be governed by
the internal laws of the Commonwealth of Pennsylvania without reference to
conflicts of laws provisions.
36
10. Mutual Release. For and in consideration of the agreements and promises
made on this date, Borrower and Lender do hereby release one another from any
claims or causes of action, whether known or unknown, one may have against the
other which accrued prior to the date of this Agreement. This is a general
release of all claims whether based on contract, tort, statute, or other legal
theory. This release shall also run to the benefit of Borrower's and Lender's
assignors, predecessors in title, officers, directors, subsidiaries, and
guarantors.
11. Miscellaneous. Borrower shall make a payment to Lender of two thousand
five hundred ($2,500.00) dollars in connection with the drafting of this
Agreement.
IN WITNESS WHEREOF, the undersigned have caused this 2003 Amendment to be
executed by their duly authorized officers on the date first above written.
ATTEST: ESCALON MEDICAL CORP
By: /s/ By: /s/
----------------------- -----------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxx
Title: SVP Finance Title: CEO
ATTEST: ESCALON VASCULAR ACCESS, INC.
By: /s/ By: /s/
----------------------- -----------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxx
Title: SVP Finance Title: CEO
ATTEST: ESCALON PHARMACEUTICAL, INC.
By: /s/ By: /s/
----------------------- -----------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxx
Title: SVP Finance Title: CEO
37
ATTEST: SONOMED, INC.
By: /s/ By: /s/
----------------------- -----------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxx
Title: SVP Finance Title: CEO
ATTEST: ESCALON DIGITAL VISION, INC.
By: /s/ By: /s/
----------------------- -----------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxx
Title: SVP Finance Title: CEO
SPRING STREET CAPITAL, L.L.C.
ATTESTED:
By: /s/ By: /s/
----------------------- -----------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Director Title: Senior Managing Director
EXHIBIT - 1
ESCALON MEDICAL CORP
Examples of Calculation of Excess Cash Split
FOR ILLUSTRATION PURPOSES ONLY
EXAMPLE 1.
Actual EBITDA $ 2,286,000
Less: Budgeted EBITDA (2,786,000) Refer to Escalon Medical Corp. Budgeted Consolidated Statement of Operations.
-----------
$ (500,000) Actual EBITDA falls short of Budgeted EBITDA, therefore, no further computation is
=========== necessary.
EXAMPLE 2.
Actual EBITDA $ 3,286,000
Less: Budgeted EBITDA (2,786,000)
-----------
$ 500,000 Actual EBITDA exceeds Budgeted EBITDA, therefore, we must split excess cash.
50%
-----------
Excess cash split $ 250,000 Represents excess cash split to be paid to Spring Street toward term loan:
===========
38
