EXHIBIT 10.108
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of the 31st day of January, 2000, is made by and between SPACEHAB,
INCORPORATED, a Washington corporation ("SPACEHAB"), ASTROTECH SPACE OPERATIONS,
INC., a Delaware corporation ("Astrotech"; together with SPACEHAB, the "Original
Borrowers"), and XXXXXXX ENGINEERING CORPORATION, a Colorado corporation
("Xxxxxxx"; Xxxxxxx, Astrotech and SPACEHAB are also referred to individually as
a "Borrower" and collectively as the "Borrowers") and FIRST UNION NATIONAL BANK,
a national banking association, successor by merger to Signet Bank, a Virginia
banking corporation ("the "Lender").
RECITALS
A. The Lender and the Original Borrowers, entered into a Loan and Security
Agreement dated as of the 16th day of June, 1997 (as amended through the date
hereof, the "Agreement") pursuant to which the Lender has agreed to extend
credit to the Original Borrowers, and the Original Borrowers have agreed to
obtain credit from the Lender, on the terms and conditions set forth in such
Agreement.
X. Xxxxxxx is a wholly-owned Subsidiary of SPACEHAB, and, at the request of
the Original Borrowers, Xxxxxxx became a Borrower pursuant to Amendment No. 2 to
Loan and Security Agreement, dated as of October 15, 1999, executed by the
Lender and the Borrowers.
C. The Borrowers have requested that the Lender modify the Agreement to extend
the Termination Date, and the Lender has consented to the Borrowers' request,
subject to the execution of this Amendment and the satisfaction of the
conditions specified herein.
D. The Borrowers and the Lender now desire to execute this Amendment to set
forth their agreements with respect to the modifications to the Agreement.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Lender and the Borrowers agree
as follows:
Section 1. Definitions. Capitalized terms used in this Amendment and not
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defined herein as defined in the Agreement.
Section 2. Amendments to Agreement. The Agreement is hereby amended as
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follows:
2.1 Amendments to Section 1. Section 1 of the Agreement is amended
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as follows:
2.1(a) Termination Date. The definition of the term
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Termination Date is hereby amended and restated in its entirety as follows:
"Termination Date" means May 19, 2000, and any extension or
extensions thereof granted by the Lender in its sole discretion.
Section 3. Representations and Warranties of the Borrowers. Each Borrower
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represents and warrants to the Lender that:
(a) It has the power and authority to enter into and to
perform this Amendment, to execute and deliver all documents relating to this
Amendment, and to incur the obligations provided for in this Amendment, all of
which have been duly authorized and approved in accordance with such Borrower's
corporate documents;
(b) This Amendment, together with all documents executed
pursuant hereto, shall constitute when executed the valid and legally binding
obligations of the Borrowers in accordance with their respective terms;
(c) Except with respect to events or circumstances occurring
subsequent to the date thereof and known to the Lender, all representations and
warranties made in the Agreement are true and correct as of the date hereof,
with the same force and effect as if all representations and warranties were
fully set forth herein;
(d) Each Borrower's obligations under the Loan Documents
remain valid and enforceable obligations, and the execution and delivery of this
Amendment and the other documents executed in connection herewith shall not be
construed as a novation of the Agreement or any of the other Loan Documents; and
(e) As of the date hereof, no Borrower has any offsets or
defenses against the payment of any of the Obligations.
Section 4. Waiver of Claims. As a specific inducement to the Lender
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without which the Borrowers acknowledge the Lender would not enter into this
Amendment and the other documents executed in connection herewith, the Borrowers
hereby waive any and all claims that they may have against the Lender, as of the
date hereof, arising out of or relating to the Agreement or any other Loan
Document whether sounding in contract, tort or any other basis.
Section 5. Conditions of Effectiveness. This Amendment shall become
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effective when, and only when, the Borrowers have executed and completed this
Amendment, have delivered this Amendment to the Lender and have reimbursed the
Lender for the Lender's costs and expenses incurred in connection with the
Amendment, but upon the occurrence of such conditions, this Amendment shall be
deemed to be effective as of January 31, 2000.
Section 6. Miscellaneous.
6.1 Reference To Agreement. Upon the effectiveness of this
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Amendment, each reference in the Agreement to "this Agreement" and each
reference in
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the other Loan Documents to the Agreement, shall mean and be a reference to the
Agreement as amended hereby.
6.2 Effect on Loan Documents and Accrued and Unpaid Interest,
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Fees an Other Charges. Except as specifically amended above, the Agreement and
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all other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed. Without limiting the generality of the foregoing, all
Collateral given to secure the Obligations of the Borrowers under the Agreement
and the other Loan Documents prior to the date hereof does and shall continue to
secure all Obligations of the Borrowers under the Agreement, as amended hereby
and the other Loan Documents, and, except as provided in the Agreement and the
other Loan Documents, no such Collateral shall be released until all conditions
to such release contained in the Loan Documents are satisfied. Any interest,
fees and other charges due under the Agreement which have accrued and remain
unpaid as of the effective date of this Amendment shall be paid on the next
succeeding date that any such charge which has accrued on or after the effective
date of this Amendment is due under the Agreement, as amended hereby, unless any
such charge is discontinued by this Amendment, in which event the Borrowers
shall pay the accrued and unpaid portion thereof upon execution of this
Amendment.
6.3 No Waiver. The execution, delivery and effectiveness of
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this Amendment shall not operate as a waiver of any right, power or remedy of
the Lender under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
6.4 Costs, Expenses and Taxes. The Borrowers agree to pay on
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demand all costs and expenses of the Lender in connection with the preparation,
reproduction, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, including the reasonable fees and out-
of-pocket expenses of counsel for the Lender with respect thereto.
6.5 Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the Commonwealth of Virginia, without
giving effect to conflict of law provisions.
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IN WITNESS WHEREOF, the Borrowers and the Lender have caused this Amendment
to be signed by their duly authorized representatives under seal all as of the
day and year first above written.
SPACEHAB, INCORPORATED,
a Washington corporation
ATTEST: By: __________________________________
________________________ Name: ________________________________
(Asst.) Secretary
[corporate seal] Title: _______________________________
ASTROTECH SPACE OPERATIONS, INC.,
a Delaware corporation
ATTEST: By: __________________________________
________________________ Name: ________________________________
(Asst.) Secretary
[corporate seal] Title: _______________________________
XXXXXXX ENGINEERING, INCORPORATED,
A Colorado corporation
ATTEST: By: __________________________________
________________________ Name: ________________________________
(Asst.) Secretary
[corporate seal] Title: _______________________________
FIRST UNION NATIONAL BANK,
a national banking association, successor
by merger to Signet Bank, a Virginia
banking corporation
By: __________________________________
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