EXHIBIT 10.21
BANK LEUMI USA
MEMBER FDIC
As of January 31, 2002
Comverge Technologies, Inc.
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, Xxx Xxxxxx
Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
February 7,2000 (the "Agreement") by and between Bank Leumi USA (the "Bank") and
Comverge Technologies, Inc, (the "Borrower"). Capitalized terms used in this
letter agreement (the "Amendment"), and not otherwise defined herein, shall have
the meanings defined in the Agreement.
Pursuant to the Agreement, the Bank agreed to make a Term Loan
to the Borrower, until the Maturity Date, in the aggregate amount of $6,000,000.
The Bank and the Borrower have agreed to amend the Agreement to extend the
Maturity Date.
Accordingly, the Borrower and the Bank agree as follows:
A. AMENDMENT TO FINANCING. Section 2.1 of the Agreement is hereby amended
and restated as follows:
"2.1 Term Loan. As of February 7, 2000 the Bank made a Term
Loan to the Borrower in the principal amount of $6,000,000. The Term Loan will
mature on February 1, 2003 (the "Maturity Date"). The principal of the Term Loan
may be prepaid in whole or in part as provided in Section 2.3. Concurrently with
the execution and delivery of this Amendment, the Borrower is evidencing its
obligation to pay the principal of, and interest on, the Term Loan by executing
and delivery an amended and restated term note, in the form of Exhibit A annexed
(the "Note"), to the Bank in the principal sum of $6,000.000"
B. CONDITIONS PRECEDENT. The obligation of the Bank to execute and deliver
this Amendment is subject to the conditions precedent that:
B.1 REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties contained in the Agreement, or otherwise made to the Bank pursuant to
or
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 xxx.XxxxXxxxx-xx.xx
Commercial Banking - Private Banking - International Banking
- A Member of the Worldwide Bank Leumi le- Israel Group
in connection with any of the Financing Agreement, shall be correct and complete
in all material respects.
B.2 NOTE. The Borrower shall have executed and delivered the Note
evidencing the Term Loan to the Bank.
B.3 SUPPORTING DOCUMENTS. Thee Bank shall have received the following: (a)
a certificate of the Secretary or an Assistant Secretary of the Borrower, dated
as of even date herewith, certifying as to (i) the Certification of
Incorporation and By-Laws of the Borrower as then in effect; (ii) the
resolutions of the Board of Directors of the Borrower authorizing the execution,
delivery and performance of this Amendment and the Note, and the Loan; (iii) the
full force and effect of such resolutions on the date hereof; and (iv) the
incumbency and signature of each of the officers of the Borrower signing this
Amendment and the Note; (b) such additional supporting documents as the Bank may
reasonably request.
B.4 CONFIRMATION OF GUARANTOR. DSSI shall have executed and delivered a
confirmation of its Guarantee and Security Agreement and renewed the time
deposit provided to the Bank pursuant thereto.
B.5 OPINION. The Bank shall have received a written opinion of legal
counsel to the Borrower and DSSI, in form and substance satisfactory to the Bank
and its counsel.
B.6 FEES. The Borrower shall have paid (i) the reasonable attomeys' fees of
counsel for the Bank, and (ii) all other charges and disbursements incurred in
connection with the tramactions contemplated by the Amendment.
C. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into the
Amendment, the Borrower represents and warrants to the Bank that:
C.1 AUTHORITY, ENFORCEABILITY. The Borrower has all requisite legal right,
power and authority to execute, deliver an perform this Amendment. The
Agreement, this Amendment and the Financing Agreement are legal, valid and
binding obligations of such of the Borrower as are parties thereto, and are
enforceable in accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium or other simillar laws presently
or hereafter in effect affecting the enforcement of creditors' rights generally
or the availability of equitable remedies.
C.2 EXECUTION. The execution, delivery and performance by the Borrower of
this Amendment and the Note (a) have been authorized by all requisite corporate
action, (b) will not violate (i) the Certificate of Incorporiation or By-laws of
the
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Borrower, (ii) any agreement or contract to which the Borrower is a party, or by
which it or any of its property is bound, or any order, decree or judgment, or
the provisions of any statute, rule or regulation, domestic or foreign, or (c)
result in the creation of any lien, charge or encumbrance of any nature
whatsoever upon any property or assets of the Borrower.
D. MISCELLANEOUS.
D.1 EXTANT NOTE. As soon after execution and delivery by the Borrower of
the Note as is practical, the Bank will return to the Borrower the note
evidencing the Term Loan which was extant prior to the execution and delivery of
the Note.
D.2 ENTIRE AGREEMENT. This Amendment is intended by the parties as the
final expression of their agreement, and therefore incorporates all negotiations
of the parties hereto, and together with the Agreement and other Financing
Agreements set forth in the entire agreement of the parties hereto.
D.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding and agreement,
kindly indicate your acceptance thereof by signing below.
Very truly yours,
BANK LEUMI USA
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Xxxxxxxx Xxxxx
Senior Vice President
By: /s/ Xxxxxx Yechilevich
--------------------------------
Xxxxxx Yechilevich
Assistant Vice President
AGREED TO:
COMVERGE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
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EXHIBIT A
TERM NOTE
$6,000,000 New York, New York
As of January 31, 2002
A. GENERAL; TERMS OF PAYMENT
1.COMVERGE TECHNOLOGIES, INC., a Delaware corporation (the"Borrower"),
promises to pay to the order of BANK LEUMI USA (the "Bank"), at its offices at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as may be
designated by the holder hereof in writing, in immediately available funds, the
principal Sum of Six Million ($6,000,000) Dollars on February 1, 2003, or sooner
as provided in the Credit Agreement (as hereinafter defined).
This note is the Note referred to in that certain Credit
Agreement between the Borrower and the Bank, dated as of Februny 7, 2000, as
amended by a letter agreement dated as of even date herewith, and as such
agreement may be further amended from time to time (the "Credit Agreement"), and
is subject to prepayment and its maturity is subject to acceleration upon the
terms contained in the Credit Agreement. Capitalized terms used herein shall be
defined as in the Credit Agreement.
The Borrower will pay interest on the unpaid principal amount of
the Term Loan from time to time outstanding, computed on the basis of a 360-day
year. The charging of interest on the basis of a 360-day year results in the
payment of more interest than would be required if interest were charged on the
actual number of days in the year. Interest shall be at the rate determined in
the Credit Agreement and be payable as is therein provided. In no event shall
interest exceed the maximum legal rate permitted for the Borrower.
2. Manner of Payment. All payments by the Borrower on account of principal,
interest or fees hereunder shall be made in lawful money of the United States of
America, in immediately available funds. The Borrower authorizes (but shall not
require) the Bank to debit any account maintained by the Borrower with the Bank,
at any date on which a payment is due under this Note, in an amount equal to any
unpaid portion of such payment. If any payment of principal or interest becomes
due on a day on which the Bank is closed (as required or permitted by law or
otherwise), such payment shall be made not later than the next succeeding
business day, and such extension shall be included in computing interest in
connection with such payment.
B. DEFAULT
Upon the occurrence of an Event of Default, as defined in the Credit
Agreement, the Bank may declare the entire unpaid principal amount of this Note
and all interest and fees accrued and unpaid hereon to be forthwith due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower.
C. MISCELLANEOUS
1. NO WAVIER; RIGHTS AND REMEDIES CUMULATIVE. No failure on the part of the
Bank to exercise, and no delay in exercising any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the Bank of any
right hereunder preclude any other or fiwffier exercise thereof or the exercise
of any other right. The rights and remedies herein provided are cumulative and
not exclusive of any remedies or rights provided by law or by any other
agreement between the Borrower and the Bank.
2. COSTS AND EXPENSES. The Borrower shall reimbarse the Bank for all costs
and expenses incurred by it and shall pay the reasonable fees and disbursements
of counsel to the Bank in connection with the enforcement of the Bank's rights
hereunder.
3. AMENDMENTS. No amendment, modification or waiver of any provision of
this Note nor consent to any departure by the Borrower therefrom shall be
effective unless the same shall be in writing and signed by the Bank and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
4. CONSTRUCTION. This Note shall be governed by the laws of the State of
New York, without giving effect to its choice of law principles.
5. SUCCESSORS AND ASSIGNS. This Note shall be binding upon the Borrower and
its successors and assigns, and the terms hereof shall inure to the benefit of
the Bank and its successors and assigns, including subsequent holders hereof.
6. SEVERABILITY. The provisions of this Note are severable, and if any
provision shall be held invalid or unenforceable, in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Note in any jurisdiction.
7. RESTATEMENT. This Note amends and restated the Term Note, dated as of
February 7, 2000, heretofore made and delivered by the Borrower to the Bank.
8. WAIVER OF NOTICE; SET-OFF. The Borrower hereby waives presentment,
demand for payment, notice of protest and all other demands in connection with
the delivery, acceptance, performance, default or enforcement of this Note. The
balance of every account
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of the Borrower with, and each claim of the Borrower against, the Bank existing
from time to time shall be subject to a lien and subject to be set-off against
any and all liabilities of the Borrower to the Bank, including those hereunder.
9. WAIVER QF TRIAL BY JURY. THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH OR ARISING OUT OF
THIS NOTE OR ANY AGREEMENT, INSTRUMENT, DOCUMENT OR GUARANTEE DELIVERED PURSUANT
HERETO OR PURSUANT TO THE CREDIT AGREEMENT, OR THE VALIDITY, PROTECTION,
INTERPRETATION, ADMINISTRATION, COLLECTION OR ENFORCEMENT HEREOF OR THEREOF OR
ANY OTHER CLAIM OR DISPUTE HEREUNDER OR THEREUNDER
10. JURISDICTION, SERVICE OF PROCESS. THE BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR
THE COUNTY OF NEW YORK AND THE UNITED STATE DISTRICT FOR THE SOUTHERN DISTRICT
OF NEW YORK IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR ANY DOCUMENT, INSTRUMENT OR GUARANTEE DELIVERED
PURSUANT HERETO OR PURSUANT TO THE AGREEMENT. IN ANY SUCH LITIGATION, THE
BORROWER WAIVES PERSONAL SERVICE OF A SUMMONS, COMPLAINT OR OTHER PROCESS AND
AGREES THAT THE SERVICE THEREOF MAY BE MADE IN ANY OTHER MANNER PERMITTED BY THE
RULES OF EITHER OF SAID COURTS.
COMVERGE TECHNOLOGIES, INC.
By:____________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, Xxx Xxxx 00000
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