EXHIBIT 10.35
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
This Third Amendment to Second Amended and Restated Loan Agreement ("Third
Amendment") is made and entered into as of October 24, 2000, by and among
Identix Incorporated, a Delaware corporation (herein called "Identix"),
Identicator Technology, Inc., a Delaware corporation (herein called
"Identicator") and Imperial Bank ("Bank") and Identix and Identicator are
hereinafter individually referred to as a "Borrower" and collectively, as
"Borrowers."
Recitals
A. Borrowers and Bank entered into a certain Second Amended and Restated
Loan Agreement dated as of May 13, 1999, as amended by that certain First
Amendment to Second Amended and Restated Loan Agreement dated as of December 25,
1999 (the "First Agreement"), and as further amended by that certain Second
Amendment to Second Amended and Restated Loan Agreement dated as of April 21,
2000 (the "Second Amendment") (as the same may from time to time be modified,
amended, supplemented, restated or superseded, the "Loan Agreement"), pursuant
to which Bank agreed to extend and make revolving loans available to Borrowers
upon the terms and conditions contained therein.
B. Borrowers have requested and Bank has agreed to modify the Quarterly
Losses financial covenant contained in the Loan Agreement, subject to all of
the terms and conditions set forth in this Third Amendment.
C. The Loan Agreement, the First Amendment, the Second Amendment, this
Third Amendment and the other Loan Documents (as defined in the Loan Agreement),
together with all other documents entered into or delivered pursuant to any of
the foregoing, in each case as originally executed or as the same may from time
to time be modified, amended, supplemented, restated or superseded are
hereinafter collectively referred to as the "Loan Documents."
Agreement
Now, Therefore, in consideration of the foregoing recitals and the mutual
covenants herein set forth for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, and to induce Bank to enter into this Third Amendment, each
Borrower and Bank hereby agree to amend the Loan Agreement as follows:
1. Definitions. Unless otherwise defined herein, all terms defined in the
Loan Agreement have the same meaning when used herein.
2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as
follows:
2.1 Section 10.D. of the Loan Agreement is hereby deleted in its
entirety and the following is substituted therefor:
"Measured on a quarterly basis on the last day of each
fiscal quarter, have maximum Quarterly Losses of not more than $4,000,000;
provided, however, that cumulative Losses from the date hereof through the
Revolving Maturity' Date shall not exceed $12,000,000 (the "Losses Cap") and,
provided further, that the Losses Cap shall be automatically increased at the
rate of fifty percent (50.0%) of all new equity obtained by the Borrowers from
May 1, 2000 through the Revolving Maturity Date, but shall in no event exceed
$16,000,000. As used herein, "Losses" means net income before taxes and non-cash
amortization, depreciation, option, and warrant expenses."
3. Limited Amendment. The amendment set forth in this Third Amendment
shall be limited precisely as written and shall not be deemed (a) to be an
amendment or waiver of any other term or condition of the Loan Agreement or the
other Loan Documents, to prejudice any right or remedy which Bank may now have
or may have in the future under or in connection with the Loan Agreement or the
other Loan Documents or (b) to be a consent to any future amendment or waiver.
4. Representations And Warranties. Each Borrower represents and warrants
that the representations and warranties respectively made in the Loan Documents
continue to be true and complete in all material respects as of the date hereof
after giving effect to this Third Amendment (except to the extent such
specifically relate to another date or as specifically described on Schedule 1
attached hereto and incorporated herein by this reference) and that the
execution, delivery and performance of this Third Amendment are duly authorized,
do not require the consent or approval of any governmental body or regulatory
authority and are not in contravention of or in conflict with any material law
or regulation or any term or provision of any other material agreement entered
into by any Borrower.
5. Conditions Precedent. The legal effectiveness of this Third Amendment
is subject to the satisfaction of all of the following conditions precedent:
(a) Executed Amendment. Bank shall have received this Third Amendment
duly executed and delivered by Borrowers and the same shall have become
effective.
(b) Financial Condition. There shall have occured no material
adverse change in the financial condition or prospects of any Borrower as shown
on the most recent financial statements submitted to Bank or disclosed to Bank,
respectively, and relied upon by Bank in entering into this Third Amendment.
(c) No Default. After giving effect to the waiver contained in this
Third Amendment, no Event of Default has occurred that remains uncured and is
continuing or will result from the consummation of the transactions contemplated
by this Third Amendment that would constitute an Event of Default as defined in
the Loan Agreement.
(d) Payment of Fees. Bank shall have received reimbursement from
Borrowers of its costs and expenses incurred (including, without limitation, its
attorneys' fees and expenses) in connection with this Third Amendment and the
transactions contemplated hereby.
(e) Other Documents. Bank shall have received such other documents,
information and items from Borrowers as it shall reasonably request to
effectuate the transactions contemplated hereby.
6. Release And Waiver.
(a) Each Borrower hereby acknowledges and agrees that: (1) it has no
claim or cause of action against Bank or any parent, subsidiary or affiliate of
Bank, or any of Bank's officers, directors, employees, attorneys or other
representatives or agents (all of which parties other than Bank being
collectively, "Bank's Agents") in connection with the Loan Documents, the loans
thereunder or the transactions contemplated therein and herein; (2) it has no
offset or defense against any of its respective obligations, indebtedness or
contracts in favor of Bank; and (3) it recognizes that Bank has heretofore
properly performed and satisfied in a timely manner all of its obligations to
and contracts with such Borrower.
(b) Although Bank regards its conduct as proper and does not believe
any Borrower to have any claim, cause of action, offset or defense against Bank
or any of Bank's Agents in connection with the Loan Documents, the loans
thereunder or the transactions contemplated therein, Bank wishes and each
Borrower agrees to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters could impair or otherwise affect any
rights, interests, contracts or remedies of Bank. Therefore, each Borrower
unconditionally releases and waives (1) any and all liabilities, indebtedness
and obligations, whether known or unknown, of any kind of Bank or of any of
Bank's Agents to such Borrower, except the obligations remaining to be performed
by Bank as expressly stated in the Loan Agreement, this Third Amendment and the
other Loan Documents executed by Bank; (2) any legal, equitable or other
obligations or duties, whether known or unknown, of Bank or of any of Bank's
Agents to any Borrower (and any rights of such Borrower against Bank) besides
those expressly stated in the Loan Agreement, this Third Amendment and the other
Loan Documents; (3) any and all claims under any oral or implied agreement,
obligation or understanding with Bank or any of Bank's Agents, whether known or
unknown, which is different from or in addition to the express terms of the Loan
Agreement, this Third Amendment or any of the other Loan Documents; and (4) all
other claims, causes of action or defenses of any kind whatsoever (if any),
whether known or unknown, which any Borrower might otherwise have against Bank
or any Bank's Agents, on account of any condition, act, omission, event,
contract, liability, obligation indebtedness, claim, cause of action, defense,
circumstance or matter of any kind whatsoever which existed, arose or occurred
at any time prior to the execution and delivery of this Third Amendment or which
could arise concurrently with the effectiveness of this Third Amendment.
(c) Each Borrower agrees that it understands the meaning and effect
of Section 1542 of the California Civil Code, which provides:
Section 1542. Certain Claims Not Affected by General
Release. A general release does not extend to claims
that the creditor does not know or suspect to exist in
his favor at the time of executing the release, which
if known by him must have materially affected his
settlement with the debtor.
EACH BORROWER AGREES TO ASSUME THE RISK OF ANY AND ALL UNKNOWN, UNANTICIPATED OR
MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION, CONTRACTS, LIABILITIES,
INDEBTEDNESS AND OBLIGATIONS WHICH ARE RELEASED BY THIS THIRD AMENDMENT IN FAVOR
OF BANK AND BANK'S
AGENTS, AND EACH BORROWER HEREBY WAIVES AND RELEASES ALL RIGHTS AND BENEFITS
WHICH IT MIGHT OTHERWISE HAVE UNDER THE AFOREMENTIONED SECTION 1542 OF THE
CALIFORNIA CIVIL CODE WITH REGARD TO THE RELEASE OF SUCH UNKNOWN, UNANTICIPATED
OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION, CONTRACTS, LIABILITIES,
INDEBTEDNESS AND OBLIGATIONS. TO THE EXTENT (IF ANY) WHICH ANY SUCH LAWS MAY BE
APPLICABLE, EACH BORROWER WAIVES AND RELEASES (TO THE MAXIMUM EXTENT PERMITTED
BY LAW) ANY RIGHT OR DEFENSE WHICH IT MIGHT OTHERWISE HAVE UNDER ANY OTHER LAW
OF ANY APPLICABLE JURISDICTION WHICH MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS
OR SCOPE OF ANY OF ITS WAIVERS OR RELEASES UNDER THIS THIRD AMENDMENT.
7. Full Force And Effect; Entire Agreement. Except to the extent
expressly provided in this Third Amendment, the terms and conditions of the Loan
Agreement and the other Loan Documents shall remain in full force and effect.
This Third Amendment and the other Loan Documents constitute and contain the
entire agreement of the parties hereto and supersede any and all prior
agreements, negotiations, correspondence, understandings and communications
between the parties, whether written or oral, respecting the subject matter
hereof. The parties hereto further agree that the Loan Documents comprise the
entire agreement of the parties thereto and supersede any and all prior
agreements, negotiations, correspondence, understandings and other
communications between the parties thereto, whether written or oral respecting
the extension of credit by Bank to Borrowers and/or their respective affiliates.
8. Counterparts; Effectiveness. This Third Amendment may be executed in
any number of counterparts, each of which when so delivered shall be deemed an
original, but all such counterparts taken together shall constitute but one and
the same instrument. Each such agreement shall become effective upon the
execution of a counterpart hereof or thereof by each of the parties hereto and
telephonic notification that such executed counterparts has been received by
each Borrower and Bank.
In Witness Whereof, each of the parties hereto has caused this Third Amendment
to be executed and delivered by its duly authorized officer as of the date first
written above.
Borrowers:
Identix Incorporated,
a Delaware corporation
By: /s/ J Xxxxx-Xxxxx
Printed Name: Xxxx X. Xxxxx-Xxxxx
Title: VP - Finance & Accounting
Identicator Technology, Inc.,
a Delaware corporation
By: /s/ J Xxxxx-Xxxxx
Printed Name: Xxxx X. Xxxxx-Xxxxx
Title: VP - Finance & Accounting
BANK: IMPERIAL BANK
By: /s/ Xxx W Le Deit
Printed Name: Xxxxxxx X. Le Deit
Title: First Vice President
Emerging Growth Division
SCHEDULE 1
SCHEDULE OF EXCEPTIONS
TO REPRESENTATIONS AND WARRANTIES
(List or indicate "None")
NONE
