THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "AMENDMENT"),
entered into and effective as of May __, 1997, is by and between IWL
Communications, Incorporated, with its principal offices at 00000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 ("DEBTOR"), and MARINE MIDLAND BUSINESS
LOANS, INC., a Delaware corporation, with offices at 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("SECURED PARTY").
RECITALS
A. Debtor and Secured Party have entered into that certain Loan and
Security Agreement dated as of December 20, 1995 as amended from time to
time, (the "LOAN AGREEMENT").
B. Debtor and Secured Party desire to amend the Loan Agreement and the
other Transaction Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01. Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01. AMENDMENT TO DEBTOR'S ADDRESS IN THE LOAN AGREEMENT. Debtor's
address and chief executive office on the cover of the Loan and Security
Agreement is hereby changed to 00000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000.
2.02. AMENDMENT TO SECTION 1.1 "CERTAIN SPECIFIC TERMS" OF THE LOAN
AGREEMENT. Section 1.1(jj) of the Loan Agreement is hereby deleted in its
entirety and the following is substituted therefor: "(jj) Marine Payment
Account means the special bank account to which Proceeds of Collateral,
including, without limitation, payments on Receivables and other payments
from sales or leases of Inventory, are credited."
The following is added to Section 1.1 of the Loan Agreement: "(jjj) Project
Inventory or Project Equipment means Inventory or Equipment of the Debtor
that is segregated from other Inventory or Equipment on the books and records
of the Debtor by being assigned to a job or project while being configured to
the specifications of a job staged for delivery or delivered to a customer's
place of business."
2.03. AMENDMENT TO SECTION 1.1(kk) "MAXIMUM CREDIT" OF THE LOAN
AGREEMENT. Section 1.1(kk) of the Loan Agreement is hereby deleted in its
entirety and the following is substituted therefor: "Maximum Credit means
Four Million Five Hundred Thousand Dollars ($4,500,000.00)."
1
2.04. AMENDMENT TO SECTION 5.3(c) OF THE LOAN AGREEMENT.
Section 5.3(c) of the Loan Agreement is hereby deleted in its entirety and
the following is substituted therefor:
"(c) no payment has been received on any Receivable, and no Receivable is
subject to any Credit or Extension or agreements therefore (except Credits or
Extensions granted in the ordinary course of business and which are not
material) unless written notice specifying such payment, Credit, Extension,
or other agreement has been delivered to Secured Party,"
2.05. AMENDMENT TO SECTION 5.4(c) OF THE LOAN AGREEMENT.
Section 5.4(c) of the Loan Agreement is hereby deleted in its entirety and
the following is substituted therefor:
"(c) Inventory, other than Rental Inventory and Project Inventory, is
located only at the address or addresses of Debtor set forth at the beginning
of this Agreement, the locations specified in Item 11 of the Schedule, or
such other place or places as approved by Secured party in writing;"
2.06. AMENDMENT TO SECTION 5.7 OF THE TO LOAN AGREEMENT.
Section 5.7 of the Loan Agreement is hereby amended by adding the words
"except for Project Equipment" after the word "Equipment" and before "is
located," so that the beginning phrase of the first sentence reads:
"Equipment, except for Project Equipment, is located, and Equipment which is
a fixture".
2.07. AMENDMENT TO SECTION 5.12 (a) OF THE LOAN AGREEMENT.
Section 5.12(a) of the Loan Agreement is hereby amended by adding the phrase
"Except for termination of the Employee Stock Option Plan," after the "(a)"
and before "No Pension Plan has been terminated".
2.08. AMENDMENT TO SECTION 6.3 OF THE LOAN AGREEMENT.
Section 6.3 of the Loan Agreement is hereby amended by adding the phrase
"except Chattel Paper constituting operating leases or Chattel Paper that is
the result of a leasing transaction specifically pledged to an alternative
lender with Secured Party acknowledgement in writing" after the phrase "The
original of each item of Chattel Paper" and before "evidencing a Receivable
shall be delivered".
2.09. AMENDMENT TO SECTION 7.1 AND 7.2 OF THE LOAN AGREEMENT.
Section 7.1 and 7.2 of the Loan Agreement are hereby deleted in their
entirety and the following is substituted therefore:
"7.1. Delivery of Proceeds to Secured Party. Unless Secured Party notifies
Debtor that it specifically dispenses with one or more of the following
requirements, any Proceeds of Collateral received by Debtor, including,
without limitation, payments on Receivables, and other sales or leases of
Inventory, not specifically pledged to an alternative lender acknowledged in
2
writing by Secured Party, shall be held by Debtor in trust for Secured Party
in the same medium in which received, shall not be commingled with any assets
of Debtor, and shall be delivered immediately to Secured Party. So long as
Secured Party elects to keep the Marine Payment Account in existence, Debtor
shall deposit, or cause to be deposited, all Proceeds of Collateral into the
Marine Payment Account and shall daily cause these Proceeds of Collateral to
be transferred to Secured Party.
7.2. Applications of Proceeds. Upon receipt of Proceeds of Collateral,
Secured Party, in its sole discretion, may apply such Proceeds directly to
the Indebtedness in the manner provided in Section 8.5."
2.10. AMENDMENT TO SECTION 9.1 OF THE LOAN AGREEMENT. Section 9.1 is
hereby amended by deleting the first sentence in its entirety and
substituting the following therefor:
"Upon request, Debtor shall notify Secured Party immediately of the return,
rejection, repossession, stoppage in transit, loss, damage, or destruction of
any Inventory. In the ordinary course of business, Debtor shall notify
Secured Party of these Inventory events on the frequency established in Item
18 of the Schedule."
2.11. AMENDMENT TO SECTION 9.2(a) OF THE LOAN AGREEMENT. Section
9.2(a) of the Loan Agreement is hereby amended by deleting "thirty (30)" from
the section and substituting "sixty (60)" therefor.
2.12. AMENDMENT TO SECTION 9.3 OF THE LOAN AGREEMENT. Section 9.3 of
the Loan Agreement is hereby amended by deleting the phrase "and immediately
notify Secured Party of such entries" at the end of the second sentence.
2.13. AMENDMENT TO SECTION 9.4 OF THE LOAN AGREEMENT. SECTION 9.4 of the
Loan Agreement is hereby amended by deleting same in its entirety.
2.14. AMENDMENT TO SECTION 10.4 OF THE LOAN AGREEMENT. Section 10.4 of
the Loan Agreement is hereby amended by deleting the sentences which read:
"Debtor shall further indicate the Security Interest on all financial
statements issued by it or shall cause the Security Interest to be so
indicated by its accountants. The Marine Payment Account, if any, is not an
asset of Debtor and shall not be shown as an asset of Debtor in such books
and records or in the financial statements."
2.15. AMENDMENT TO SECTION 10.8 OF THE LOAN AGREEMENT. Section 10.8 of
the Loan Agreement is hereby deleted in its entirety and the following is
substituted therefor:
"10.8 RESPONSIBLE PARTIES. Debtor shall notify Secured Party
3
of the occurrence of any event specified in Section 1.1(dd) (v) with respect
to any Responsible Party, promptly after receiving notice thereof provided
such event has a material effect on the Receivables Borrowing Base.
2.16. AMENDMENT TO SECTION 10.9 OF THE LOAN AGREEMENT.
Section 10.9 of the Loan Agreement is hereby amended by adding the word
"material" prior to the words "taxes, assessments, and other governmental
charges".
2.17. AMENDMENT TO SECTION 10.10 OF THE LOAN AGREEMENT.
Section 10.10 of the Loan Agreement is hereby amended by adding the phrase
", in the reasonable judgement of Debtor," prior to the words "materially and
adversely".
2.18. AMENDMENT TO SECTION 11.1 OF THE LOAN AGREEMENT.
Section 11.1 is hereby amended by deleting it in its entirety and
substituting the following therefor:
"11.1 Location of Inventory, Equipment, and Business Records. Move the
Inventory, Equipment or the records concerning the Collateral from the
location where they are kept as specified in Items 11 and 13 of the Schedule;
provided, however, Debtor may lease Rental Inventory, move Project Inventory
or move Project Equipment subject to Item 22 of the Schedule."
2.19. AMENDMENT TO SECTION 11.6(c) OF THE LOAN AGREEMENT.
Section 11.6(c) of the Loan Agreement is hereby amended by adding the phrase
"except for the initial public offering of common stock scheduled to occur on
or about May 30, 1997," prior to the words "convey, lease, or sell"
2.20. AMENDMENT TO SECTION 11.7 OF THE LOAN AGREEMENT.
Section 11.7 is hereby deleted in its entirety and the following is
substituted therefor:
"11.7 Capital Stock. Except for the initial public offering of common stock
scheduled to occur on or about May 30, 1997, purchase or retire any of its
capital stock or issue capital stock except pursuant to the exercised or
grant of stock options or except pro rata to its present or future
stockholders or otherwise change the capital structure of such Debtor or
change the relative rights, preferences or limitations relating to any of its
capital stock."
2.21. AMENDMENT TO SECTION 11.9(b) TO LOAN AGREEMENT.
Section 11.9(b) is hereby deleted in its entirety and the following is
substituted therefor:
"(b) direct obligations of the United States of America, investments like
commercial paper, certificates of deposit, security repurchase agreements,
eurodollar deposits and money market funds with a rating of A2P2 or
equivalent rating or better
4
or obligations issued by financial institutions which have a rating of
investment grade or better."
2.22. AMENDMENT TO SECTION 11.15 OF THE LOAN AGREEMENT.
Section 11.15 of the Loan Agreement is hereby amended by adding the phrase
"or alternative lender with acknowledgement of Secured Party in writing" after
the words "Secured Party" and prior to the words "and except".
2.23. AMENDMENT TO SECTION 12.1(p) OF THE LOAN AGREEMENT.
Section 12.1(p) is hereby amended by deleting same in its entirety.
2.24. AMENDMENT TO ITEM 1(B)(ii) OF THE SCHEDULE. Item 1(B) (ii) of the
Schedule shall be deleted in its entirety and the following substituted
therefor:
"(ii) the lesser of Nine Hundred Thousand Dollars ($900,000.00) or the amount
of the Inventory Borrowing Base;"
2.25. AMENDMENT TO ITEM 8 OF THE SCHEDULE TO THE LOAN AGREEMENT. Item 8
of the Schedule is hereby deleted in its entirety and the following is
substituted therefor:
"8. Marine Payment Account (Sec 1.1(jj))
There is a Marine Payment Account. It is currently at Texas Commerce
Bank - Houston but may be relocated with advance notice to the Secured
Party."
2.26. AMENDMENT TO ITEMS 11 AND 13 OF THE SCHEDULE TO THE LOAN AGREEMENT.
Items 11 and 13 of the Schedule are hereby deleted in their entirety and the
following is substituted therefor:
"11 & 13. Locations of Business Records, Inventory and Equipment (Sec.
5.4(c), 5.7, 5.8(a), 5.8(c) & 11.1)
a) 00000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, XX 00000
b) 00000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, XX 00000
c) 0000 XX 0000 Xxxxxxxxxxx, XX 00000
d) 0000 XX 000 Xxxxxxxxxxx, XX 00000
e) 0000-X XX 0000 Xxxxxxxxxxx, XX 00000
f) 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000
g) 0000 Xxxxxxxxx Xxxx., Xxxxx X Xx. Xxxx, XX 00000
h) 0/0 Xxxxxxxxxx Xxxxxxxx, Xxxxx Xxxxxxx, Xx 0000-0000 Xxxxxx 000000
Xxxxxx"
5
2.27. AMENDMENT TO ITEM 12(a) OF THE SCHEDULE TO THE LOAN AGREEMENT.
Item 12(a) to the Schedule is hereby amended by deleting it in its entirety.
2.28. AMENDMENT TO ITEM 17 OF THE SCHEDULE TO THE LOAN AGREEMENT. Item 17
to the Schedule is hereby amended by deleting it in its entirety and
substituting the following therefor:
"17. Authorized Shares (Sec 5.27,11.7)
Total Authorized Common Shares: 100,000,000
Issued and Outstanding: 2,227,816
After offering, Outstanding: 3,477,816"
Total Preferred Shares: 10,000,000
Issued and Outstanding: 0
After offering, Outstanding: 0"
2.29. AMENDMENT TO ITEM 22 OF THE SCHEDULE TO LOAN AGREEMENT. Item 22(a)
of the Schedule to the Loan Agreement is hereby amended by adding the words
"or Project Inventory or Project Equipment is moved" after the words "if any
Rental Inventory is leased" and before "to an Account Debtor".
Item 22(b) of the Schedule to the Loan Agreement is hereby amended
substituting the following for the current sentence:
"(b) If any Project Inventory or Project Equipment remains at a location
other than those specified in Item 11 or if Debtor agrees to lease Rental
Inventory for a period of more than ninety days Debtor shall notify Secured
Party in writing prior to the seventy-fifth (75th) day of the location of the
Project Inventory or Project Equipment or relevant lease agreement. This
notification to Secured Party obligation shall begin on June 30, 1997."
2.30. AMENDMENT TO ITEM 24(a)(1), 24(a)(2), 24(b)(1) AND 24(b)(2) OF THE
SCHEDULE TO THE LOAN AGREEMENT.
Item 24(a)(1) of the Schedule to the Loan Agreement is hereby amended by
deleting 24(a)(1) in its entirety and substituting the following therefor:
"(1) Minimum Tangible Net Worth: Debtor shall maintain, on a consolidated
basis, a Tangible Net Worth ("TNW") not less than the amounts set forth below
for the time periods set forth below:
Amount Time Period
$2,480,000.00 From the date of closing
through June 29, 1996
$2,766,000.00 From June 30, 1996
through June 29, 1997
$3,418,000.00 From June 30, 1997
through June 29, 1998
TNW for the fiscal year From June 30, 1998
June 30, 1997 plus $200,000 through June 29, 1999
TNW for the fiscal year From June 30, 1999
June 30, 1998 plus $200,000 through June 29, 2000"
The Consolidated Maximum Debt to Tangible Net Worth Ratio 24(a)(2) defined in
the table in this Section is hereby changed from 3.0 : 1.0 to 4.0 : 1.0.
Item 24(b)(1) of the Schedule to the Loan Agreement is hereby amended by
deleting 24(b)(1) in its entirety and substituting the following therefor:
"(1) Minimum Tangible Net Worth: Debtor shall maintain, on an unconsolidated
basis, a Tangible Net Worth ("TNW") not less than the amounts set forth below
for the time periods set forth below: amounts set forth below for the time
periods set forth below:
Amount Time Period
$2,000,000.00 From the date of closing
through June 29, 1996
$2,315,000.00 From June 30, 1996
through June 29, 1997
$2,822,000.00 From June 30, 1997
through June 29, 1998
TNW for the fiscal year From June 30, 1998
June 30, 1997 plus $200,000 through June 29, 1999
TNW for the fiscal year From June 30, 1999
June 30, 1998 plus $200,000 through June 29, 2000"
The Unconsolidated Maximum Debt to Tangible Net Worth Ratio 24(a)(2) defined
in the table in this Section is hereby changed from 3.0 : 1.0 to 4.5 : 1.0.
2.31. AMENDMENT TO ITEM 26 OF THE SCHEDULE TO LOAN AGREEMENT. Item 26 of
the Schedule to the Loan Agreement is hereby amended by deleting 26(b) in its
entirety and substituting the following therefor and adding 26(c):
"b. Additional advances and/or investments to Kenwood Systems Group Inc.;
provided, however, that the aggregate amount of such additional advances and
investments shall not exceed one hundred thousand dollars ($100,000.00) at
any time."
"c. Additional advances and/or investments to IWL Communications Ltd.;
provided, however, that the aggregate amount of such additional advances and
investments shall not exceed two hundred fifty thousand dollars ($250,000.00)
at any time."
2.32. AMENDMENT TO ITEM 29 OF THE SCHEDULE TO LOAN AGREEMENT. Item 29 of
the Schedule to the Loan Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"29. Permitted Capital Expenditures (Sec. 11.12)
Debtor: $5,000,000.00."
2.33. AMENDMENT TO ITEM 34 OF THE SCHEDULE TO LOAN AGREEMENT. Item 26 of
the Schedule to the Loan Agreement is hereby amended by the addition of the
following:
Consolidated Subsidiary Debtor's Ownership
IWL Communications, Ltd. 100%
ARTICLE III
6
CONDITIONS PRECEDENT
3.01. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Secured Party:
(a) Secured Party shall have received this Amendment duly
executed by the parties thereto other than Secured Party, and such
additional documents, instruments and information as Secured Party or
its legal counsel may request;
(b) The representations and warranties contained herein and in
the Loan Agreement and the other Transaction Documents, as each is
amended hereby, shall be true and correct as of the date hereof, as if
made on the date hereof;
(c) No event of Default or event which, with notice or lapse of
time or both, would constitute an Event of Default, shall have
occurred and be continuing, unless such Event of Default or event has
been specifically waived in writing by Secured Party;
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Secured Party and its legal counsel.
ARTICLE IV
WAIVER
4.01. The Secured Party hereby waives enforcement of its rights against
the Debtor arising from any Events of Default to the extent, and only to the
extent, that these Events of Default occurred or existed under the Loan
Agreement or the Transaction Documents on or before the date of this
Amendment. Except as otherwise specifically provided for in this Amendment,
nothing contained herein shall be construed as a prospective waiver by
Secured Party of any covenant or provision of the Loan Agreement, the other
Transaction Documents, this Amendment, or of any other contract or instrument
between Debtor and Secured Party, and Secured Party's failure at any time or
times hereafter to require strict performance by Debtor of any provision
thereof shall not waive, affect or diminish any right of Secured Party to
thereafter demand strict compliance therewith.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01. Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Loan Agreement and the other Transaction
Documents, and, except as expressly modified and
7
superseded by this Amendment, the terms and provisions of the Loan Agreement
and the other Transaction Documents are ratified and confirmed and shall
continue in full force and effect. Debtor and Secured Party agree that the
Loan Agreement and the other Transaction Documents, as amended hereby, shall
continue to be legal, valid, binding and enforceable in accordance with their
respective terms.
5.02. REPRESENTATIONS AND WARRANTIES. Debtor hereby represents and
warrants to Secured Party that (a) the execution, delivery and performance of
this Amendment and any and all other Transaction Documents executed and/or
delivered in connection herewith have been authorized by all requisite
corporate action on the part of Debtor and will not violate the Articles of
Incorporation or Bylaws of Debtor; (b) attached hereto as EXHIBIT A is a
true, correct and complete copy of presently effective resolutions of
Debtor's board of directors authorizing the execution, delivery and
performance of this Amendment and any and all other Transaction Documents
executed and/or delivered in connection herewith, certified by the Secretary
or an Assistant Secretary of Debtor; (c) the representations and warranties
contained in the Loan Agreement, as amended hereby, and any other
Transaction Documents are true and correct on and as of the date hereof and
on and as of the date of execution hereof as though made on and as of each
such date; (d) no Event of Default or event which, with notice or lapse of
time or both, would constitute an Event of Default, under the Loan Agreement,
as amended hereby, has occurred and is continuing, unless such event or Event
of Default has been specifically waived in writing by Secured Party; (e)
Debtor is in full compliance with all covenants and agreements contained in
the Loan Agreement and the other Transaction Documents, as amended hereby;
and (f) except for amendments delivered to Secured Party, Debtor has not
amended its Articles of Incorporation or its Bylaws since the date of the
Loan Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in the Loan Agreement or any other Transaction Documents,
including, without limitation, any document furnished in connection with
this Amendment, shall survive the execution and delivery of this Amendment
and the other Transaction Documents, and no investigation by Secured Party or
any closing shall affect the representations and warranties or the right of
Secured Party to rely upon them.
6.02. REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and the
other Transaction Documents, and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Loan Agreement, as amended hereby, are
hereby amended so that
8
any reference in the Loan Agreement and such other Transaction Documents
to the Loan Agreement or the Term Note shall mean a reference to the Loan
Agreement and the Term Note as amended hereby.
6.03 EXPENSES OF SECURED PARTY. As provided in the Loan Agreement,
Debtor agrees to pay on demand all costs and expenses incurred by
Secured Party in connection with the preparation, negotiation and
execution of this Amendment and the other Transaction Documents
executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and
fees of Secured Party's legal counsel, and all costs and expenses
incurred by Secured Party in connection with the enforcement or
preservation of any rights under the Loan Agreement, as amended
hereby, or any other Transaction Documents, including, without
limitation, the costs and fees of Secured Party's legal counsel.
6.04. SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall
not impair or invalidate the remainder of this Amendment and the
effect thereof shall be confined to the provision so held to be
invalid or unenforceable.
6.05 SUCCESSOR AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of Secured Party and Debtor and their
respective successors and assigns, except Debtor may not assign or
transfer any of its rights or obligations hereunder without the prior
written consent of Secured Party.
6.06 COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to
be an original, but all of which when taken together shall constitute
one and the same instrument.
6.07. EFFECT OF WAIVER. No consent or waiver, express or
implied, by Secured Party to or for breach of or deviation from any
covenant or condition by Debtor shall be deemed a consent to or
waiver of any breach of the same or any other covenant, condition or
duty.
6.08 HEADINGS. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
6.09. APPLICABLE LAW. THIS AMENDMENT, THE OTHER TRANSACTION
DOCUMENTS AND THE TRANSACTIONS EVIDENCED HEREBY AND THEREBY SHALL BE
GOVERNED BY, AND CONSTRUED UNDER, THE INTERNAL LAWS OF THE STATE OF
TEXAS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, AS THE SAME MAY
FROM TIME TO TIME BE IN EFFECT, INCLUDING, WITHOUT LIMITATION, THE
UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE OF TEXAS.
9
6.10 ENTIRE AGREEMENT. THIS AMENDMENT AND THE OTHER TRANSACTION
DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY AND
SUPERSEDE ALL PRIOR NEGOTIATIONS, UNDERSTANDINGS, AND AGREEMENTS BETWEEN SUCH
PARTIES WITH RESPECT TO SUCH TRANSACTIONS.
6.11 RELEASE. DEBTOR HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "INDEBTEDNESS" OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM SECURED PARTY. DEBTOR HEREBY VOLUNTARILY
AND KNOWINGLY RELEASES AND FOREVER DISCHARGES SECURED PARTY, ITS
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT
IS EXECUTED, WHICH THE DEBTOR MAY NOW OR HEREAFTER HAVE AGAINST SECURED
PARTY, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY,
AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT,
VIOLATION OF LAWS OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY
"INDEBTEDNESS", INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING,
TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST
LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE
LOAN AGREEMENT OR OTHER AGREEMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS
AMENDMENT.
Executed and effective on May __, 1997.
"DEBTOR"
IWL COMMUNICATIONS, INCORPORATED.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Accepted on May __, 1997.
"SECURED PARTY"
MARINE MIDLAND BUSINESS LOANS, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
10
