Exhibit 10.18
WAIVER AGREEMENT
This Waiver Agreement (this "Waiver") is entered into as of this 14th
day of April, 1999, between DELPHI INFORMATION SYSTEMS, INC. ("Borrower") and
COAST BUSINESS CREDIT, a division of Southern Pacific Bank ("Lender"), with
respect to the following:
A. Borrower and Lender have previously entered into that certain
Loan and Security Agreement dated January 8, 1997, as amended (the "Loan
Agreement"). Capitalized terms are used in this Waiver as defined in the Loan
Agreement, unless otherwise defined herein.
B. Borrower has requested that Lender waive Borrower's violation of
certain covenants under the Loan Agreement. Lender is willing to waive such
violations on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions hereof, the parties hereto agree as follows:
1. WAIVERS OF DEFAULTS.
(a) Borrower acknowledges that for the period of December 31, 1998 to
March 31, 1999, Borrower had accounts payable that were more than ninety (90)
days past due in violation of Section 7(2) of the Schedule to the Loan
Agreement. Borrower further acknowledges that the foregoing violation
constitutes an Event of Default under the Loan Agreement. Lender hereby waives
such Event of Default for the period through March 31, 1999.
(b) Borrower acknowledges that an Event of Default has occurred under
the Loan Agreement as a result of Borrower's failure to comply with Section 1(a)
of the Schedule to the Loan Agreement, which provides in part: "Loans ("the
Receivable Loans") [are] not to exceed the following amounts: ...(ii) from
January 1, 1999 through March 31, 1999, two (2) times Monthly Collections."
Lender hereby waives such Event of Default for the period through March 31,
1999.
(c) Borrower acknowledges that as a result of the occurrence of the
Event of Default described in paragraph (b) above, overadvances occurred on one
or more occasions in January, 1999 in that the loans exceeded the Credit Limit
in Section 1 of the Schedule to the Loan Agreement, thereby constituting
additional Events of Default under the Loan Agreement. Lender hereby waives the
Events of Default caused by such overadvances for the time periods in January.
(d) Borrower acknowledges that for the period December 29, 1998 to
January 12, 1999, Borrower failed to remit to Lender all proceeds arising out of
the disposition of any Collateral in violation of Section 4.5 of the Loan
Agreement. Borrower further acknowledges that such violation constitutes an
Event of Default under the Loan Agreement. Lender hereby waives such Event of
Default for the time period December 29, 1998 to January 12, 1999.
(e) The foregoing waivers are on-time waivers only and shall apply
only to the matters and time periods specifically set forth in this Paragraph 1.
Without limiting the generality of the foregoing, these waivers shall not apply
to any future failure by Borrower to comply any provision of the Loan Agreement
at any time.
(f) Lender reserves all of its rights and remedies with respect to
all other obligations of Borrower under the Loan Agreement and all other Loan
Documents.
2. WAIVER FEE. In addition to all other fees and expenses, Borrower
shall pay to Lender a fee of Fifteen Thousand Dollars ($15,000) in consideration
of the waivers provided to Borrower herein, fully earned and payable on the date
hereof.
3. REAFFIRMATION. Except as provided herein, the Loan Agreement and
each other Loan Document remains in full force and effect in accordance with its
terms. If there is any conflict between the terms and provisions of this Waiver
and the terms and provisions of the Loan Agreement or any other Loan Document,
the terms and provisions of this Waiver shall govern.
4. COUNTERPARTS. This Waiver may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5. GOVERNING LAW. This Waiver shall be governed by and construed
according to the laws of the State of California.
6. ATTORNEYS' FEES. Borrower shall pay, on demand, all attorneys'
fees and costs incurred in connection with the documentation and execution of
this Waiver. If any legal action or proceeding shall be commenced at any time by
any party to this Waiver in connection with its interpretation or enforcement,
the prevailing party or parties in such action or proceeding shall be entitled
to reimbursement of its reasonable attorneys' fees and costs in connection
therewith, in addition to all other relief to which the prevailing party or
parties may be entitled.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Waiver
as of the date first above written.
DELPHI INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx X. X'Xxxxxxx
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Title: SR VP FINANCE & CFO
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COAST BUSINESS CREDIT,
a division of Southern Pacific Bank
By: /s/ Xxxxx Xxxxxx
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Title: VP
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AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Amendment to Loan and Security Agreement ("AMENDMENT") is entered
into as of this 16th day of September, 1999, between Delphi Information Systems,
Inc. ("BORROWER") and Coast Business Credit-Registered Trademark-, a division of
Southern Pacific Bank ("COAST") in reference to that certain Loan and Security
Agreement between Borrower and Coast dated January 8, 1997, as amended ("LOAN
AGREEMENT"). All capitalized terms not defined herein shall have the meaning
given in the Loan Agreement.
The parties desire that the Loan Agreement be modified as follows:
1. FORBEARANCE PERIOD. The current outstanding balance of the
Borrower's Obligations under the Loan Agreement is approximately $9,000 along
with all unpaid interest and fees. In order to accommodate Borrower, Coast and
Borrower have mutually agreed that as of the Effective Date (defined below) and
until Coast determines that Borrower's reporting mechanisms and reports
generated thereby are satisfactory to Coast in its discretion, Coast shall,
except as provided in the next sentence, cease making loans as otherwise set
forth under the Loan Agreement. During this period (the "Forbearance Period"),
the Borrower will pay to Coast minimum interest on the sum of $1,600,000 at the
rate equal to the difference between the applicable rate set forth in the Loan
Agreement for loans and the Prime Rate minus three points. Once Coast in its
discretion has determined that the Forbearance Period should be terminated,
Coast's loans will be made under the terms of the Loan Agreement as they existed
prior to this Amendment.
2. TERMINATION OF THE FORBEARANCE PERIOD. Before Coast can determine
whether the Forbearance Period should be terminated, Borrower shall have
submitted new reports in form and substance acceptable to Coast and Coast shall
have performed the necessary audits to confirm the accuracy of such reports.
3. COLLECTIONS. During the Forbearance Period, Borrower will not be
required to remit to Coast any proceeds of Borrower's Receivables or other
collections and Borrower may use such monies in the ordinary course of its
business.
4. MORATORIUM ON REPORTING AND AUDITS. Except as noted above, during
the Forbearance Period, (a) Borrower will not be required to comply with the
reporting requirements under the Loan Agreement except that Borrower shall
continue to provide Coast with quarterly 10Q's as required by the Loan
Agreement, and (b) Coast will not require that any audits be performed.
5. MINIMUM INTEREST. Coast hereby waives the minimum monthly
interest requirement under the Loan Agreement for the time period beginning July
1, 1999 through and including the Effective Date of this Amendment. The
foregoing waiver is a one-time waiver only and not a continuing waiver, and
shall apply only to the matters and time periods specifically set forth in this
Waiver. Without limited the generality of the foregoing, this waiver shall not
apply to any future failure by Borrower to comply with the terms of the Loan
Agreement referenced above or any other term therein.
6. LOCKBOX. Borrower agrees that once the Forbearance Period has
ended, all proceeds of Collateral shall be deposited by Borrower into a lockbox
account, pursuant to a lockbox agreement in such form as Coast may specify.
7. MAXIMUM DOLLAR AMOUNT. Borrower agrees that the existing Maximum
Dollar Amount shall remain at $4,000,000.
8. CONDITIONS TO EFFECTIVENESS. The "Effective Date" of this
Amendment is the date upon which each of the following shall have occurred:
a. This Amendment shall have been duly executed and delivered
by each party hereto.
b. Borrower shall repay the Obligations in full.
c. Coast shall have received such other documents, instruments,
approvals and opinions as Coast may reasonably request.
9. REAFFIRMATION. Except as amended by terms herein, the Loan
Agreement remains in full force and effect. If there is any conflict between the
terms and provisions of this Amendment and the terms and provisions of the Loan
Agreement, the terms and provisions of this Amendment shall govern.
10. COUNTERPARTS. This Amendment may be executed in one or more
counterparts.
11. GOVERNING LAW. This Amendment shall be governed by the laws of
the State of California.
12. ATTORNEYS' FEES. If any action or proceeding shall be commenced
at any time by any party to this Amendment to enforce, interpret or otherwise
concerning the terms herein, the prevailing party in such action shall be
entitled to reimbursement of its costs and reasonable attorneys' fees. EACH OF
THE PARTIES HERETO WAIVES TRIAL BY JURY IN CONNECTION WITH ANY ACTION DESCRIBED
IN THE PRECEDING SENTENCE. In addition to all other fees and charges, Borrower
shall reimburse Coast, upon demand, for all attorneys' fees and costs incurred
in connection with the negotiation, documentation and closing of this Amendment.
"Coast" "Borrower"
COAST BUSINESS CREDIT, DELPHI INFORMATION SYSTEMS, INC.
A DIVISION OF SOUTHERN PACIFIC
BANK
By: /s/ Xxxxx Xxxxxx By: /s/ X. Xxxx
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Its: VP Its: CFO
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