EIGHTH AMENDMENT
This Eighth Amendment (the "Eighth Amendment") entered into as of November
29, 1996 by and between NDC Automation, Inc. (the "Borrower"), a corporation
organized and existing under the laws of the State of Delaware, and having its
principal place of business in Charlotte, North Carolina, and NationsBank, N.A.
(successor-in-interest to NationsBank, N.A. (Carolinas) and to NationsBank of
North Carolina, N.A.), a national banking association, (the "Bank") organized
and existing under the laws of the United States and having offices in
Charlotte, North Carolina.
INTRODUCTORY STATEMENT
A. The Borrower and the Bank are parties to, among other things, an
Amended and Restated Loan Agreement dated July 28, 1994 (the "Restated Loan
Agreement"), as amended as of November 30, 1994, as of December 19, 1994, as of
March 31, 1995, as of August 30, 1995, as of November 30, 1995, as of March 31,
1996 and as of May 31, 1996.
B. Borrower has requested and the Bank has agreed to amend the Restated
Loan Agreement in the respects set forth herein.
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
AGREEMENT
1. Amendment of the Agreement. The Restated Loan Agreement is amended
as follows:
(a) Article I - Definitions.
Section 1.01 is hereby amended such that the definition of
the term "Borrowing Base" means the sum of: (a) eighty percent (80%)
of Eligible Receivables and (b) the lesser of (x) forty percent (40%)
of Eligible Inventory or (y) $300,000.
(i) Section 1.01 is hereby amended such that the definition of
the term "Eligible Receivables" means all accounts receivables of the
Borrower except (i) those which are 90 days or more past due or more
than 150 days from invoice date; (ii) those arising from sales to
Affiliates; (iii) those from sales to customers located outside of
the United States of America except for such customers specifically
approved in writing by
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the Bank; (iv) those which the Bank in its reasonable discretion and
in accordance with its customary criteria determines to be ineligible,
and (v) those receivables that are project receivables.
(ii) Section 1.01 is hereby amended such that the term "Facility
A Amount" means $750,000.
(iii) Section 1.01 is hereby amended such that the term
"Termination Date" means February 28, 1997.
(b) Article II - Facility A Loans.
(i) Section 2.03 is amended in its entirety so that such
section now reads as follows:
2.03 Interest Rate. The outstanding principal
balance of the Facility A Loans shall bear interest at
the Prime Rate plus 3.25% per annum.
(c) Exhibit 9.02(c)(ii).
Exhibit 9.02(c)(ii) of the Restated Loan Agreement, the "Form of
Borrowing Base Report" is hereby amended to reflect that "Receivables
from Projects" shall no longer qualify as Eligible Receivables.
2. Letter of Credit. Simultaneously with the execution of this Eighth
Amendment, as additional security for the Borrower's obligations to the Bank
under the Amended Loan Documents, the Borrower shall cause Nordbanken AB to
issue a $450,000 standby letter of credit (the "Standby Letter of Credit")
for the benefit of the Bank. The Standby Letter of Credit shall be in the
form of that attached hereto as Exhibit A.
3. Extension Fee. The Borrower shall pay to the Bank for the Bank's own
account a Termination Date extension fee in the amount of $7,500, provided,
however, that such extension fee (a) shall not be due and payable until February
28, 1997 and (b) shall be waived by the Bank if the Borrower satisfies all of
its other obligations to the Bank under the Amended Loan Documents on or before
the Termination Date, including but not limited to payment in full of the
outstanding balance of principal and accrued interest on the Facility A Note.
4. Waivers and Release of Claims. As additional consideration to the
execution, delivery, and performance of this Eighth Amendment and to induce
the Bank to enter into this Eighth Amendment, the Borrower represents and
warrants that (a) the Borrower knows of no defenses, counterclaims or rights
of setoff to the payment of any indebtedness of the Borrower to the Bank,
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and (b) the Borrower for itself, its Subsidiaries, their respective
representatives, agents, officers, directors, employees, shareholders, and
successors and assigns, hereby fully, finally, completely, generally and forever
releases, discharges, acquits, and relinquishes the Bank and its respective
representatives, agents, officers, directors, employees, shareholders, and
successors and assigns, from any and all claims, actions, demands, and causes of
action of whatever kind or character, whether joint or several, whether known or
unknown, for any and all injuries, harm, damages, penalties, costs, losses,
expenses, attorneys' fees, and/or liability whatsoever and whatever incurred
or suffered by any of them prior to the execution of this Eighth Amendment
related to any indebtedness of the Borrower to the Bank under the Original
Loan Documents or the Amended Loan Documents. Notwithstanding any provision of
this Eighth Amendment or any other Amended Loan Document or Original Loan
Document, this Section shall remain in full force and effect and shall survive
the delivery of this Eighth Amendment and the making, extension, renewal,
modification, amendment or restatement of any thereof.
5. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank that as of the date hereof the Restated Loan Agreement has
been reexamined and:
(a) The representations and warranties made by the Borrower
in Article VIII thereof are true on and as of the date hereof;
(b) The Borrower has the power and authority to enter into this
Eighth Amendment and to perform its obligations herein and has by proper
corporate action duly authorized the execution and delivery of this
Eighth Amendment and ratified and affirmed the enforceability of the
other Amended Loan Documents;
(c) Neither the execution and delivery of this Eighth Amendment, nor
the performance of the obligations herein violates or will violate any law
or governmental order, conflicts or will conflict with any provision of any
charter document or bylaw of the Borrower or any material term or provision
of any agreement or instrument to which the Borrower is a party or by which
the Borrower is bound, or constitutes or will constitute a breach of or a
default under any such agreement or instrument; and
(d) No consent, approval or authorization of, or filing, registration
or qualification with, any governmental authority on the part of the
Borrower is required as a condition to the execution, delivery or
performance of this Eighth Amendment by the Borrower.
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6. Full Force and Effect. The Restated Loan Agreement, as amended
hereby, is hereby confirmed to continue in full force and effect. All terms
defined in the Restated Loan Agreement and not defined herein shall have the
meaning herein as in the Restated Loan Agreement.
7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
8. Expenses. Upon demand therefor, the Borrower shall pay all out-of-
pocket expenses incurred by the Bank in connection with the negotiation,
drafting and execution of the transaction set forth herein, plus all unpaid
out-of-pocket expenses otherwise due under the Amended Loan Documents, all
including, without limitation, reasonable fees and expenses of the Bank's
counsel.
IN WITNESS WHEREOF, the parties have executed this Eighth Amendment all
this of the day and year first above written.
NDC AUTOMATION, INC.
ATTEST:
By /s/ Xxxxx Xxxxxxxxx By /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Vice President
Title CEO
(Corporate Seal)
NATIONSBANK, N.A.
ATTEST:
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Vice President
Title Assistant Secretary
(Corporate Seal)
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XXX.XX:CLT INCOMING SWIFT MSG-707 TEMPLATE-35895870 12/23/96
{1:F01NABKUS33ACHA1612776729}
{2:O7071504961223NBBKSEGGAXXX3901356
FROM:
NORDBANKEN
XXXXXXX XXXXXXXXX 00
000 00 XXXXXXXX
XXXXXXXX
{4:
09612230904N} {4:
** 20 SENDING BANKS REFERENCE
:20:3330/IR007354GBG
** 21 RECEIVING BANKS REFERENCE
:21:NONREF
** 31C DATE OF ISSUE/TRANSFER OF THE CREDIT
:31C:961218
** 30 DATE OF AMENDMENT
:30:961223
:26E:1
** 59 BENEFICIARY (BEFORE THIS AMENDMENT)
:59:NATIONSBANK NA
XX XXX 000
XXXXXXXXX XX 00000
XXX
** 31E NEW DATE OF EXPIRY
:3???970328
** NARATIVE
:79:Charges : ALL CHARGES ARE FOR APPLICANTS ACCOUNT
Instructions to the bank : DELETE: RECEIPT OF
XXXXXXXX BANK'S TELEX OR SWIFT INSERT: RECEIPT OF
NATIONSBANK'S N.A., CHARLOTTE TELEX OR SWIFT
** 72 BANK TO BANK INFORMATION
:72:SUBJECT TO ICC 1993 REVISION.
PUBLICATION NO. 500.
*
PLEASE ADVISE BENEFICIARY BY PHONE
-}{5:{MAC:13E73E22}
{CHK:32937C583B41}}
*** L/C ISSUE NOT FOUND TO CREATE AMENDMENT ***
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XXX.XX:CLT INCOMING SWIFT MSG-700 TEMPLATE-00000000 12/19/96
{1:F01NABKUS33ACHA0000000000}{2:O7001504961219NBBKSEGGAXXX3899355
FROM:
NORDBANKEN
XXXXXXX XXXXXXXXX 00
000 00 XXXXXXXX
XXXXXXXX
{4:
09612190904N}{4:
** 27 SEQUENCE OF TOTAL
:27:1/1
**40 FORM OF DOCUMENTARY CREDIT
:40A:IRREVOCABLE
** 20 DOCUMENTARY CREDIT NUMBER
:20:3330/IR007354GBG
** 31C DATE OF ISSUE OF THE D/C
:31C:961219
** 31D DATE AND PLACE OF EXPIRY
:31D:970301NATIONSBANK NA
** 50 APPLICANT
:50:NDC XXXXXXX X XXXXXXXX CO AB
429 80 SARO
** 59 BENEFICIARY
:59:NATIONSBANK NA
XX XXX 000
XXXXXXXXX XX 00000
XXX
** 32B CURRENCY CODE, AMOUNT
:32B:USD450000,
** 39 AMOUNT SPECIFICATION
:39B: UP TO
** 41 AVAILABLE WITH...BY...
:41D:NATIONSBANK NA CHARLOTTE
BY PAYMENT
** 42 DRAFTS AT ... DRAWN ON ...
:42C:sight
88 42 DRAFTS AT ... DRAWN ON ...
:42D:advising bank
** 46 DOCUMENTS REQUIRED
:46A:
+WRITTEN STATEMENT ISSUED BY NATIONSBANK N.A., CHARLOTTE, USA
EVIDENCING THAT NATIONSBANK N.A., CHARLOTTE HAS NOT RECEIVED
PAYMENT FROM NDC AUTOMATION, INC., 0000 XXXXXXX XXXXX, XXXXXXXXX,
XX 00000 XXX UNDER NATIONSBANK N.A. REF 822154-315 AND THAT THE
AMOUNT OF USD ..... (MAX USD 450.000,00) IS NOW DUE
** 47 ADDITIONAL CONDITIONS
:47A:
PARTIAL DRAWINGS ARE ALLOWED
.
THIS IS A STAND BY LETTER OF CREDIT
** 1B CHARGES
:???:ALL CHARGES OF BANKS OTHER THAN
THE ISSUING BANK ARE FOR THE
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AMOUNT OF THE BENEFICIARY
** 49 CONFIRMATION INSTRUCTIONS
:49:WITHOUT
** 78 INSTRUCTIONS TO THE PAYING/ACCEPTING/NEGOTIATING BANK
:78:
UPON OUR RECEIPT OF XXXXXXXX BANK'S TESTED TELEX OR SWIFT
EVIDENCING THAT NATIONSBANK N.A., CHARLOTTE HAS NOT RECEIVED
PAYMENT FROM NDC AUTOMATION, INC., 0000 XXXXXXX XXXXX, XXXXXXXXX,
XX 00000 XXX UNDER NATIONSBANK N.A. REF 822154-315 AND THE AMOUNT
OF USD ...... (MAX USD 450.000,00) IS NOW DUE, WE WILL PAY TO
ADVISING BANK AS INSTRUCTED VALUE TWO WORKING DAYS LATER.
** 72 BANK TO BANK INFORMATION
:72:IF THIS L/C EXPIRES DURING AN INTER
RUPTION OF BUSINESS AS DESCRIBED IN
ART 17 WE HEREBY SPECIFICALLY AGREE
TO EFFECT PAYMENT IF THIS L/C IS
DRAWN AGAINST WITHIN 30 DAYS AFTER
OF THE RESUMPTION OF BUSINESS.
-}{5:{MAC:AA5F1FC8}{CHK:08A84908FDC4}}
*** RECORD 354953100000000000 WRITTEN TO FILE LCOLOC ***
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