TO LOAN AND SECURITY AGREEMENT
Exhibit 10.14
SECOND AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT AND MODIFICATION TO LOAN AND SECURITY AGREEMENT (the “Amendment”) is made effective as of the day of , 2006, by and among INFO LOGIX INC., a Delaware corporation (“Infologix”), OPT ACQUISITION LLC, a Pennsylvania limited liability company (“Optasia”), EMBEDDED TECHNOLOGIES, LLC, a Delaware limited liability company (“Embedded” and together with Infologix and Optasia, jointly, severally and collectively “Borrowers” and each a “Borrower”) and SOVEREIGN BANK (the “Bank”).
BACKGROUND
A. Pursuant to that certain Loan and Security Agreement dated March 16, 2006 by and among Borrowers and Bank (as amended by that certain First Amendment and Modification to Loan and Security Agreement dated August 25, 2006 (the “First Amendment”) and as the same may hereafter be amended, modified, supplemented or restated from time to time, being referred to herein as the “Loan Agreement”), Bank agreed, inter alia, to extend to Borrowers the following credit facilities: (i) a line of credit in the maximum principal amount of Eight Million Five Hundred Thousand Dollars ($8,500,000.00), (ii) a term loan in the original principal amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) and (iii) a term loan in the original principal amount of One Million Dollars ($1,000,000.00).
B. Borrowers have requested and Bank has agreed to amend the Loan Agreement in accordance with the terms and conditions contained herein.
C. All capitalized terms contained herein and not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto agree as follows:
1. Waiver of Covenant Default.
(a) Bank hereby waives any Default or Event of Default that exists or may arise under the Loan Agreement as a result of Borrowers’ failure to comply with the Fixed Charge Coverage Ratio set forth in Section 8.3 of the Loan Agreement as of Borrowers’ fiscal quarter ended September 30, 2006.
(b) The foregoing waiver applies solely with respect to the covenant and period referenced in Section 1(a) above and does not apply to or constitute a waiver for any other Default or Event of Default that exists or may exist under the Loan Agreement or any of the other Loan Documents, including, without limitation, Borrower’s failure to comply with the covenant set forth in Section 8.3 of the Loan Agreement as of any other date.
2. Definitions. Section 1.1(o)A of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“(o)A “Cut-Off Date” means November 30, 2006.”
3. Term Loan B - Principal Payments. Section 4.3A of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“4.3A Principal Payments on Term Loan B. Subject to the next succeeding sentence, Borrowers will pay the principal of Term Loan B in (a) equal and consecutive monthly installments of Twenty-Seven Thousand Seven Hundred Seventy-Seven and 78/100 Dollars ($27,777.78) each, on the first day of each calendar month commencing on December 1, 2006, and (b) one (1) final payment of the remaining principal balance, plus all accrued and unpaid interest thereon on March 15, 2009. Notwithstanding the foregoing, if the Capital Raise Date has not occurred prior to the Cut-Off Date, Borrower will pay the entire outstanding principal balance of Term Loan B, plus all accrued and unpaid interest thereon on December 31, 2006.”
4. Additional Conditions. Section 11 of the First Amendment is hereby deleted and replaced with the following:
“11. Additional Conditions. If the Capital Raise Date does not occur prior to the Cut-Off Date, on November 30, 2006, at Borrowers’ sole option, (i) Bank shall institute a reserve against Eligible Receivables or Eligible Inventory in an amount equal to Five Hundred Thousand Dollars ($500,000.00) or (ii) Borrower shall deposit in a non-interest bearing cash collateral account maintained at Bank (the “Additional Cash Collateral Account”) an amount equal to Five Hundred Thousand Dollars ($500,000.00).
Bank will have sole dominion and control over all items and funds in the Additional Cash Collateral Account and such items and funds may be withdrawn only by Bank. Bank will have the right to apply all or any part of such funds towards payment of any of the Bank Indebtedness. Items and funds in the Additional Cash Collateral Account shall be referred to herein as the “Additional Cash Collateral”.”
5. Amendment/References. The Loan Agreement and the Loan Documents are hereby amended to be consistent with the terms of this Amendment. All references in the Loan Agreement and the Loan Documents to (a) the “Loan Agreement” shall mean the Loan Agreement as amended hereby; and (b) the “Loan Documents” shall include this Amendment and all other instruments or agreements executed pursuant to or in connection with the terms hereof.
6. Cross-Collateralization; Confirmation of Collateral. Borrowers hereby confirm, acknowledge and agree that all Bank Indebtedness is and shall be cross-collateralized and, without limiting the foregoing, Term Loan B, the other Loans, and all other Bank Indebtedness are and shall continue to be secured by all liens, security interests, assignments, suretyship obligations, stock pledges, rights and remedies granted to Bank in the Loan Documents, which liens, mortgages, security interests, rights and remedies are hereby reaffirmed and continued as security for the foregoing; and all of the Loan Documents are hereby amended to reflect the same. None of the
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Collateral shall be impaired by anything contained herein and all such Collateral shall continue to secure all present and future Bank Indebtedness.
7. Release. Each Borrower and each Guarantor acknowledges and agrees that it has no claims, suits or causes of action against Bank and hereby remises, releases and forever discharges Bank, their officers, directors, shareholders, employees, agents, successors and assigns, and any of them, from any claims, suits or causes of action whatsoever, in law or at equity, which any Borrower or any Guarantor has or may have arising from any act, omission or otherwise, at any time up to and including the date of this Amendment.
8. Additional Documents; Further Assurances. Each Borrower covenants and agrees to execute and deliver to Bank, or to cause to be executed and delivered to Bank contemporaneously herewith, at the sole cost and expense of such Borrower, the Amendment and any and all documents, agreements, statements, resolutions, searches, insurance policies, consents, certificates, legal opinions and information as Bank may require in connection with the execution and delivery of this Amendment or any documents in connection herewith, or to further evidence, effect, enforce or protect any of the terms hereof or the rights or remedies granted or intended to be granted to Bank herein or in any of the Loan Documents, or to enforce or to protect Bank’s interest in the Collateral. All such documents, agreements, statements, etc., shall be in form and content acceptable to Bank in its sole discretion. Each Borrower hereby authorizes Bank to file, at such Borrower’s cost and expense, financing statements, amendments thereto and other items as Bank may require to evidence or perfect Bank’s continuing security interest and liens in and against the Collateral. Each Borrower agrees to join with Bank in notifying any third party with possession of any Collateral of Bank’s security interest therein and in obtaining an acknowledgment from the third party that it is holding the Collateral for the benefit of Bank. Each Borrower will cooperate with Bank in obtaining control with respect to Collateral consisting of deposit accounts, investment property, letter-of-credit rights and electronic chattel paper.
9. Further Agreements and Representations. Each Borrower does hereby:
(a) ratify, confirm and acknowledge that the statements contained in the foregoing Background and in Section 1 hereof are true and complete and that, as amended hereby, the Loan Agreement and the other Loan Documents are in full force and effect and are valid, binding and enforceable against each Borrower and its assets and properties, all in accordance with the terms thereof, as amended;
(b) covenant and agree to perform all of such Borrower’s obligations under the Loan Agreement and the other Loan Documents, as amended;
(c) acknowledge and agree that as of the date hereof, no Borrower has any defense, set-off, counterclaim or challenge against the payment of any Bank Indebtedness or the enforcement of any of the terms of the Loan Agreement or of the other Loan Documents, as amended;
(d) acknowledge and agree that all representations and warranties of each Borrower contained in the Loan Agreement and/or the other Loan Documents, as amended, are true, accurate and correct on and as of the date hereof as if made on and as of the date hereof;
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(e) represent and warrant that no Default or Event of Default exists, except as provided for in Section 1(a) herein;
(f) covenant and agree that such Borrower’s failure to comply with any of the terms of this Amendment or any other instrument or agreement executed or delivered in connection herewith, shall constitute an Event of Default under the Loan Agreement and each of the other Loan Documents; and
(g) acknowledge and agree that nothing contained herein, and no actions taken pursuant to the terms hereof, are intended to constitute a novation of any of the Notes, the Loan Agreement or of any of the other Loan Documents and does not constitute a release, termination or waiver of any existing Event of Default or of any of the liens, security interests, rights or remedies granted to the Bank in any of the Loan Documents, which liens, security interests, rights and remedies are hereby expressly ratified, confirmed, extended and continued as security for all Bank Indebtedness.
Each Borrower acknowledges and agrees that Bank is relying on the foregoing agreements, confirmations, representations and warranties of each Borrower and the other agreements, representations and warranties of each Borrower contained herein in agreeing to the amendments contained in this Amendment.
10. Fees, Cost, Expenses and Expenditures. Borrowers will pay all of Bank’s reasonable expenses in connection with the review, preparation, negotiation, documentation and closing of this Amendment and the consummation of the transactions contemplated hereunder, including without limitation, fees, disbursements, expenses and disbursements of counsel retained by Bank and all fees related to filings, recording of documents, searches, environmental assessments and appraisal reports, whether or not the transactions contemplated hereunder are consummated.
11. No Waiver. Nothing contained herein constitutes an agreement or obligation by Bank to grant any further amendments to the Loan Agreement or any of the other Loan Documents. Except as specifically set forth in Section 1 hereof, nothing contained herein constitutes a waiver or release by Bank of any Event of Default or of any rights or remedies available to Bank under the Loan Documents or at law or in equity.
12. Inconsistencies. To the extent of any inconsistencies between the terms and conditions of this Amendment and the terms and conditions of the Loan Agreement or the other Loan Documents, the terms and conditions of this Amendment shall prevail. All terms and conditions of the Loan Agreement and other Loan Documents not inconsistent herewith shall remain in full force and effect and are hereby ratified and confirmed by Borrowers.
13. Binding Effect. This Amendment, upon due execution hereof, shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
14. Governing Law. This Amendment shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflict of law principles.
15. Severability. The provisions of this Amendment and all other Loan Documents are deemed to be severable, and the invalidity or unenforceability of any provision shall not affect or impair the remaining provisions which shall continue in full force and effect.
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16. Modifications. No modification of this Amendment or any of the Loan Documents shall be binding or enforceable unless in writing and signed by or on behalf of the party against whom enforcement is sought.
17. Headings. The headings of the Articles, Sections, paragraphs and clauses of this Amendment are inserted for convenience only and shall not be deemed to constitute a part of this Amendment.
18. Counterparts. This Amendment may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Amendment to be executed the day and year first above written.
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INFO LOGIX INC. |
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By: |
Xxxxx X. Xxxxxx |
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Xxxxx Xxxxxx, President |
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OPT ACQUISITION LLC |
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By: |
Xxxxx X. Xxxxxx |
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Xxxxx Xxxxxx, President |
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EMBEDDED TECHNOLOGIES, LLC |
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By: INFO LOGIX INC., its sole Member |
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By: |
Xxxxx X. Xxxxxx |
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Xxxxx Xxxxxx, President |
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SOVEREIGN BANK |
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By: |
Xxxxxx Xxxxxxxxx |
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Xxxxxx Xxxxxxxxx, Vice President |
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRIOR PAGE]
Each of the undersigned, intending to be legally bound hereby, consents and agrees to the foregoing Second Amendment and Modification to Loan Agreement dated of even date herewith (the “Agreement”), and all terms thereof and further agrees that (a) such Agreement shall in no way affect or impair the undersigned’s obligations under those certain Limited Surety Agreements from the undersigned to Bank dated March 16, 2006 (collectively, the “Sureties”), or under any other documents executed or delivered pursuant thereto or in connection therewith and (b) the terms of the Sureties are hereby ratified and confirmed, all as of the date hereof.
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Xxxxx Xxxxxxxx |
(SEAL) |
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Witness: |
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XXXXX XXXXXXXX |
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Xxxxxxx Xxxxx |
(SEAL) |
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Witness: |
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XXXXXXX XXXXX |
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Xxxxx X. Xxxxxx |
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Witness: |
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XXXXX XXXXXX |
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