FOURTH MODIFICATION TO LOAN AND SECURITY AGREEMENT
Exhibit
10.22
FOURTH
MODIFICATION TO LOAN AND SECURITY AGREEMENT
This
Fourth Modification to Loan and
Security Agreement (this "Modification") is entered into by
and between TransTech Systems,
Inc., a(n) Oregon corporation ("Borrower") and CapitalSource Business Finance Group, a dba of
BFI Business Finance, a California corporation ("Lender") as
of this 6th day of June,
2017, at Campbell,
California.
RECITALS
A. Lender
and Borrower have previously entered into or are concurrently
herewith entering into a Loan and Security Agreement (the
"Agreement") dated December 9,
2008.
B. Lender and Borrower
may have previously executed one or more Modifications to Loan and
Security Agreement (the "Previous Modification(s)").
C. Borrower has
requested, and Lender has agreed, to modify the Agreement as set
forth below.
AGREEMENT
For
good and valuable consideration, the parties agree as set forth
below:
1. Incorporation by Reference. The
Agreement and the Previous Modification(s), if any, as modified
hereby and the Recitals are incorporated herein by this
reference.
2. Borrowing Authority. The
Borrowing Resolution and Incumbency
Certification attached hereto as Exhibit A and incorporated herein by
this reference remains in full force and effect and no change in
Borrower's officers or signing authority has
occurred.
3. Effective Date. The terms of
this Modification shall be in full force and effect as of
June 12, 2017
4. Modification to Agreement. The
Agreement is hereby modified as follows:
a. The
following definition(s) as set forth in "Section 1.1 Definitions." is(are) hereby
amended and restated in its(their) entirety as set forth
below:
"Maximum Account Advance" means
the sum of Five Hundred Thousand
and 00/100 Dollars ($500,000.00).
"Maximum Amount" means the sum
of Five Hundred Thousand and 00/100
Dollars ($500,000,00).
b.
The following Section(s) is(are) hereby amended and restated in
its(their) entirety as set forth
below:
2.2.9
Loan Fee. On the
Effective Date of the Fourth Modification to Loan and Security
Agreement; and annually (every twelve (-12-) months) thereafter
while any Obligations remain outstanding to Lender, Borrower agrees
to pay Lender a loan fee equal to one percent (1.00%) of the
Maximum Amount (each, the "Loan Fee").
6.1 Basic
Term. This Agreement will be effective upon the Effective
Date of the Fourth Modification to Loan and Security Agreement,
will continue in full force and effect for twelve (-12-) months
thereafter (the "Basic Term"); and shall be further automatically
extended, for successive periods equal to twelve (-12-) months
(each, a "Renewal Term"), unless Borrower shall have given the
Lender written notice of its intention to terminate (a
"Termination Notice") at least thirty (30) days prior to the
anniversary of each Basic Term, whereupon this Agreement shall
terminate as of the date fixed in the Termination Notice.
Notwithstanding any contrary provisions herein, Lender reserves the
right to terminate this Agreement at its Sole Discretion upon
giving sixty (60) days' prior written notice to Borrower pursuant
to provisions of Section 15 hereof.
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5. Fee. On the
Effective Date of the Modification, Borrower agrees to pay a loan
fee in the amount of Five Thousand
and 00/100 Dollars ($5,000.00), which sum represents the
annual loan fee due on June 12, 2017.
6. Legal Effect. Except as
specifically set forth in this Modification, all of the terms and
conditions of the Agreement remain in full force and
effect.
7. Counterparts. This Modification
may be executed in any number of counterparts, each of which shall
be deemed an original but all of which taken together shall
constitute a single original.
8. Electronic Signature. This
Modification, or a signature page thereto intended to be attached
to a copy of this Modification, signed and transmitted by facsimile
machine, telecopier or other electronic means (including via
transmittal of a "pdf' file) shall be deemed and treated as an
original document. The signature of any person thereon, for
purposes hereof, is to be considered as an original signature, and
the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At
the request of any party hereto, any facsimile, telecopy or other
electronic document is to be re-executed in original form by the
persons who executed the facsimile, telecopy of other electronic
document. No party hereto may raise the use of a facsimile machine,
telecopier or other electronic means or the fact that any signature
was transmitted through the use of a facsimile machine, telecopier
or other electronic means as a defense to the enforcement of this
Modification.
9. Integration. This is an
integrated Modification and supersedes all prior negotiations and
agreements regarding the subject matter hereof. All amendments
hereto must be in writing and signed by the parties.
IN
WITNESS WHEREOF, the parties have executed this Fourth Modification
to Loan and Security Agreement as of the date first set forth
above.
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CapitalSource Business Finance Group
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TransTech Systems, Inc.
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a dba of BFI Business Finance
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/s/ Xxxxxxx X. Xxxxx
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/s/
Xxxxx Xxxxxx
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By: Xxxxxxx X. Xxxxx
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By: Xxxxx Xxxxxx
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Its: Vice President
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Its: Controller
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EXHIBIT
A
BORROWING
RESOLUTION AND INCUMBENCY CERTIFICATION
CapitalSource
Business Finance Group
a dba
of BFI Business Finance
000
Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
In
completing this resolution, you must list in this opening paragraph
the names of the officer (or officers if more than one) authorized
to sign on behalf of
this corporation. The undersigned certifies that if more than one
officer is listed, any one of such officers has full authority to
bind the corporation, and the signature of one officer on all
documents is executed by such officer conclusively shall be binding
on the corporation.
RESOLVED
That
Signature
_/s/ Xxxxxx X.
Erickson______________ Name Xxxxxx X. Xxxxxxxx
Title President/Secretary
Signature
_/s/
Xxxx Xxxxxx
__________________
Name Xxxx Xxxxxx
Title CFO
Signature
_/s/ Xxxxx Xxxxxx
_________________ Name Xxxxx Xxxxxx
Title Controller
(hereinafter
sometimes referred to, whether one or more, as “sold
officers”) of TransTech Systems, Inc., a(n) Oregon
corporation (the “Corporation”), are authorized from
time to time, in the name of and in behalf of the Corporation, to
borrow from CapitalSource Business Finance Group, a dba of BFI
Business Finance, a California corporation (“Lender”)
such sums of money as said officers deem expedient, from time to
time to extend or renew any such loan in whole or in part, to
contract with Lender upon such terms and conditions as Lender
requires for the issuance of commercial letters of credit, and any
other credit or financial accomodations, irrespective of the
aggregate principal indebtedness of the Corporation with respect to
such transactions outstanding and unpaid; and sold officers are
hereby authorized to execute in the Corporation’s name the
note or notes of the Corporation as evidence of each such loan and
of an extension or renewal thereof and to execute all contracts and
other instruments required by Lender in connection with any loan,
each of which contracts, notes and other instruments shall contain
such terms and conditions as are agreed upon by said officers and
Lender, including, among others not specified in this resolution,
provisions regulating or restricting the declaration and payment of
dividends by the Corporation, the payment of indebtedness to
officers, shareholders, or other persons other than Lender, or
other regulations or restrictions of the same or different kinds,
conditions as to default, attorneys’ fees, waivers of notice,
and sale of securities.
RESOLVED FUTHER
that said officers are authorized tp hypothecate or pledge with and
transfer and deliver to Lender as security for the payment of any
obligation so incurred such securities or other assets of the
Corporation as are agreed upon by them and Lender and to execute in
the name of the Corporation such agreements of hypothecation as
they deem expedient, and to include in any such agreement such
waivers of demand, notice or advertisement and such other waivers
and provisions as seem expedient to them, including among others, a
provision that any such security may be held by Lender to secure
any other indebtedness, whether due or not due, owing to Lender
from the Corporation.
RESOLVED FURTHER
that said officers may direct Lender orally or by written
instruction to disburse the proceeds of any loan made in the name
of the Corporation to any person, partnership, corporation, or
other legal entity including without limitation to said officers
personally (the “Disbursements”) and may, either
individually or collectively, authorize other employees and/or
representatives of the Corporation to direct Lender orally or by
written instruction to make Disbursements, so long as such
authorization is made in writing and in form and substance
acceptable to Lender.
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EXHIBIT
A
RESOLVED FURTHER,
that said officers are authorized and empowered to transact any and
all business with Lender which the undersigned could in any way
transact, and that said officers, and any other employees of this
Corporation be, and each of them individually hereby is further
authorized to execute, acknowledge and/or deliver on behalf of the
Corporation and in the name of the Corporation any and all
assignments, documents, instruments and agreements which said
officers deem necessary or convenient in the transaction of such
business of the Corporation with Lender.
RESOLVED FURTHER
that any and all agreements, instruments and documents previously
executed and acts and things previously done to carry out the
purposes of this resolutions are ratified, confirmed and approved
as the act or acts of the Corporation.
RESOLVED FURTHER
that it two or more resolutions of the Corporation authorizing any
of the transactions authorized by this resolution are outstanding
concurrently at any time the provisions thereof shall be deemed to
be cumulative.
RESOLVED FURTHER
that said officers are authorized, in addition to any obligations
incurred under any of the preceding provisions of this resolution,
to discount with Lender any notes, drafts, acceptances, bills of
exchange, or other evidences of debt owned by the Corporation upon
said terms as are agreed upon by Lender and said officers and in
the name of the Corporation, to endorse such evidence of
indebtedness so to be discounted by Lender and to guarantee payment
thereof to Lender.
RESOLVED FURTHER
that upon the execution by said officers of any instrument
authorized by this resolution such instrument shall be deemed to be
executed by the Corporation whether or not the corporate seal of
the Corporation is affixed thereto.
RESOLVED FURTHER
that all loans heretofore incurred by said officers in the name of
the Corporation and all promissory notes and other documents
executed by them in connection therewith or to secure the same are
hereby ratified and approved.
RESOLVED FURTHER
that Lender shall be able to rely on the incumbency of said
officers until written notice is received at the above captioned
office.
RESOLVED FURTHER
that this resolution shall remain in full force and effect until
written notice of its repeal has been received by Lender at the
above captioned office, such revocation however not to affect the
validity of any note or other instruments theretofore
executed.
This is
to certify that the foregoing is a true copy of a resolution duly
adopted by the directors of TransTech Systems, Inc., a corporation,
at a meeting of its board of directors duly and regularly held or
in the alternative, pursuant to an action by written consent and
that said resolution or action is in full force and effect. This
resolution shall be deemed to constitute such resolution or action
if none other is provided to Lender.
This
will further certify that the signatures indicated above are true
specimens of each captioned officer’s signature.
Dated
as of: December 12, 2016 at Seattle, WA.
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Place
Corporate Seal Below:_________________
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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As Secretary of TransTech Systems, Inc.
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EXHIBIT
A
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The
Above Statements Are Correct
n/a________________________________________
Signature
of Officer or Director, or, if none, a Shareholder other than
Secretary, when Secretary is authorized to sign alone.
Failure
to complete the above when Secretary is authorized to sign alone
shall constitute a certification by Secretary that Secretary is
sole Shareholder, Director, and Officer of
Corporation.
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[Notary
acknowledgement may be required for this document]
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A
notary public or other officer completing this certificate verifies
only the identity of the individual who signed the document to
which this certificate is attached, any not the truthfulness,
accuracy, or validity of that document.
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State
of California
County
of ____________________
On
________________ before me,
____________________________________________________________,
(insert
name and title of officer)
personally appeared
________________________________________________________________________,
who
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that his/her/there
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the
instrument.
I
certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and
correct.
Witness
my hand and official seal.
Signature
__________________________________________ (Seal)
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