Exhibit 1.2
THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING LINE OF CREDIT LOAN AND SECURITY AGREEMENT,
JOINDER, ASSUMPTION AND RATIFICATION AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING LINE OF CREDIT
LOAN AND SECURITY AGREEMENT, JOINDER, ASSUMPTION AND RATIFICATION AGREEMENT
("Amendment") is dated as of October 1, 2006, and is by and among (a) ESSEX
CORPORATION (for itself and as successor by merger to Computer Science
Innovations, Inc.), THE WINDERMERE GROUP, LLC, WINDERMERE INFORMATION TECHNOLOGY
SYSTEMS, LLC, and WINDERMERE HDS, LLC (collectively, the "ORIGINAL ESSEX
BORROWERS") (b) ADAPTIVE OPTICS ASSOCIATES, INC., a Delaware corporation (the
"ADDITIONAL BORROWER") and (c) BANK OF AMERICA, N.A., a national banking
association (the "Lender").
RECITALS:
A. Pursuant to that certain Amended and Restated Revolving Line of
Credit Loan and Security Agreement dated as of June 30, 2005 between the Lender
and the Original Essex Borrowers, as amended by that certain First Amendment to
Amended and Restated Revolving Line of Credit Loan and Security Agreement dated
as of December 19, 2005 and that certain Second Amendment to Amended and
Restated Revolving Line of Credit Loan and Security Agreement ("SECOND
AMENDMENT") dated as of September 29, 2006 (as the same may from time to time be
amended, restated, extended, refinanced, replaced, supplemented or otherwise
modified, the "LOAN AGREEMENT"), the Lender established a revolving credit
facility pursuant to which the Lender agreed to make advances to the Original
Essex Borrowers from time to time in an aggregate principal amount not to exceed
Fifty Five Million Dollars ($55,000,000) at any one time outstanding.
B. The Original Essex Borrowers desire to consummate the acquisition
(the "ACQUISITION") of all of the Capital Stock and assets of the Additional
Borrower, as the same transaction is more particularly described in that certain
Stock Purchase Agreement of dated as of September 19, 2006. The Lender has
consented to the Acquisition pursuant to the Second Amendment. Following the
Acquisition, the Additional Borrower will be a wholly-owned subsidiary of Essex
Corporation.
C. The Original Essex Borrowers have asked the Lender to enter into
this Amendment in order to (i) permit the Additional Borrower to assume, jointly
and severally with the Original Essex Borrowers, the obligations of the Original
Essex Borrowers under the Loan Documents, as amended hereby and (ii) amend the
Loan Agreement and the applicable Loan Documents. The Lender is willing to do so
only if the Borrowers execute and deliver this Amendment and all of the other
documents called for herein.
D. The obligations of the Original Essex Borrowers to repay advances
made under the Loan Agreement is currently evidenced by that certain Second
Amended and
Restated Revolving Loan Note dated September 29, 2006 from the Original Essex
Borrowers to the order of the Lender in the face amount of Fifty Five Million
Dollars ($55,000,000.00), which is intended to be further amended and restated
concurrently with the execution of this Amendment pursuant to that certain Third
Amended and Restated Revolving Loan Note from the Borrowers to the order of the
Lender (as the same may from time to time be amended, restated, supplemented, or
otherwise modified, the "REVOLVING NOTE"). The Loan Agreement, the Revolving
Note, and all other documents now or hereafter executed and delivered by the
Borrowers or any other party or parties to evidence, secure, guarantee, or
otherwise in connection with the Credit Facility are hereinafter called
collectively the "LOAN DOCUMENTS."
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. TERMS DEFINED. Unless otherwise defined or stated in this Amendment,
each capitalized term used in this Amendment has the meaning given to such term
in the Loan Agreement (as amended by this Amendment).
2. AMENDMENT. The Loan Agreement is, effective as of the date hereof,
hereby amended as follows:
The definitions set forth in SECTION 1.1. of the Credit Agreement are
hereby amended, restated or supplemented (as appropriate) to read as follows:
"ADDITIONAL BORROWER" means Adaptive Optics Associates, Inc.,a Delaware
corporation.
"BORROWERS" means, collectively, the Original Essex Borrowers and the
Additional Borrower; PROVIDED, HOWEVER, that the Additional Borrower shall only
be considered a Borrower for the purposes of Article 5 of this Agreement with
respect to request for an Advance or a Letter of Credit made or issued from and
after October 1, 2006.
"ORIGINAL ESSEX BORROWERS" means Essex Corporation, Computer Science
Innovations, Inc., The Windermere Group, LLC, Windermere Information Technology
Systems, LLC and Windermere HDS, LLC.
"REVOLVING NOTE" means the Borrowers' Third Amended and Restated
Revolving Credit Note of even date, in the amount of Fifty-Five Million and
00/100 Dollars ($55,000,000.00), payable to the order of the Lender, and
evidencing Borrowers' obligation to repay the Revolving Loan, as such Revolving
Note may be amended from time to time.
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Line of Credit Loan and Security Agreement, Joinder,
Assumption and Ratification Agreement - Page 2
3. JOINDER AND ASSUMPTION. The Additional Borrower hereby joins in and
assumes all of the Obligations, jointly and severally with the Original Essex
Borrowers, and the Additional Borrower hereby covenants, promises and agrees,
jointly and severally with the Original Essex Borrowers: (a) to pay to the
Lender the principal of and interest on the Revolving Note, and all other sums
payable thereunder, at the times, in the manner, and in all respects as therein
provided; (b) to perform and comply with all of the terms, covenants, agreements
and obligations to be performed by the Original Essex Borrowers under the
Revolving Note, the Loan Agreement, and all other Loan Documents at the times,
in the manner, and in all respects as therein provided; (c) to be bound by each
and all of the terms, covenants, agreements and obligations of the Revolving
Note, the Loan Agreement, and all other Loan Documents as though said documents
had originally been made, executed, and delivered by the Original Essex
Borrowers and the Additional Borrower specifically including, without
limitation, the pledge and assignment of a security interest in the Collateral;
and (d) to execute such further documents and agreements as the Lender may
require to protect or perfect its interest in any collateral securing the Credit
Facilities.
4. COLLATERAL. In order to secure the full and punctual payment of the
Obligations in accordance with the terms of the Loan Agreement, and to secure
the due and punctual performance of the Borrowers' Obligations, the Additional
Borrower confirms that it hereby pledges to the Lender and grants to the Lender
a continuing lien and security interest in and to the Collateral, both now owned
and existing and hereafter created, acquired and arising and regardless of where
located, and all proceeds and products thereof.
In furtherance hereof, the Additional Borrower shall execute and
deliver to the Lender such pledge agreements, security agreements, real property
waivers, deeds, security agreements and/or supplements thereto, without
limitation, as the Lender may request in connection with the joinder of the
Additional Borrower and the assumption by it of all Obligations under the Loan
Agreement and other Loan Documents.
5. RATIFICATION AND CONFIRMATION/ NO NOVATION. The Borrowers hereby
ratify and confirm that this Amendment, the Loan Agreement and the Loan
Documents constitute the legal, valid and binding obligations of the Borrowers,
enforceable in accordance with their stated terms. The Lender and the Borrowers
agree that it is their intention that nothing herein shall be construed to
extinguish, release or discharge or constitute, create or effect a novation of,
or an agreement to extinguish, (a) any of the obligations, indebtedness and
liabilities of any party under the provisions of the Loan Documents, or (b) any
assignment or pledge to the Lender of, or any security interest or lien granted
to the Lender in or on, any collateral and security for such obligations,
indebtedness and liabilities.
6. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject
to the satisfaction of each of the following conditions precedent, all of which
conditions precedent must be satisfied on or before October 1, 2006:
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Line of Credit Loan and Security Agreement, Joinder,
Assumption and Ratification Agreement - Page 3
(a) The Lender shall have received this Amendment executed by
the parties hereto, all outstanding attorneys' fees, costs and
expenses, and all fees and expenses called for herein or incurred in
connection with the preparation and execution of this Amendment and the
documents called for herein;
(b) The Lender shall have received all of the transactional
documents set forth on the "Document Index" prepared and circulated
concurrently herewith, specifically including without limitation (i)
the Revolving Note; (ii) the opinion of counsel; (iii) the Post-Closing
Agreement; and (iv) all Corporate Certificates; and
(c) No Default or Event of Default shall have occurred and be
continuing.
7. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent and
warrant to the Lender, and agree with the Lender that, as of the date of and
after giving effect to this Amendment, (a) the execution, delivery and
performance of this Amendment has been authorized by all requisite corporate
action on the part of the Borrowers and will not violate any of the Borrowers'
organizational documents or bylaws; (b) all representations and warranties set
forth in the Loan Agreement are true and correct as if made again on and as of
such date (except if and to the extent that such representations and warranties
were expressly made only as of another specific date); (c) no Event of Default
has occurred and is continuing; and (d) other than as previously disclosed in
writing to the Lender, there is not any action, suit, investigation or
proceeding pending or threatened in any court or before any arbitrator or
governmental authority that purports to or has the practical effect of: (a)
materially adversely affecting the Borrowers, or (b) adversely affecting the
transactions contemplated by this Amendment.
8. LOAN AGREEMENT REMAINS IN EFFECT; NO WAIVER. All terms and
provisions of the Loan Agreement and the other the Loan Documents shall remain
unchanged and in full force and effect and are hereby ratified and confirmed. No
waiver by the Lender of any Default or Event of Default shall be deemed to be a
waiver of any other Default or Event of Default. No delay or omission by the
Lender in exercising any power, right or remedy shall impair such power, right
or remedy or be construed as a waiver thereof or an acquiescence therein, and no
single, periodic or partial exercise of any such power, right or remedy shall
preclude other or further exercise thereof or the exercise of any other power,
right or remedy under the Agreement, the Loan Documents or otherwise.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any such
counterpart.
10. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENT THE FINAL
AGREEMENTS BETWEEN AND AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF
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Line of Credit Loan and Security Agreement, Joinder,
Assumption and Ratification Agreement - Page 4
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN (A) THE BORROWERS AND (B) THE LENDER.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment or any other Loan Document shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no
investigation by the Lender or any closing shall affect the representations and
warranties or the right of the Lender to rely upon such representations and
warranties.
12. REFERENCE TO LOAN AGREEMENT. This Amendment shall constitute a Loan
Document. Each of the Loan Documents, including the Loan Agreement, this
Amendment and any and all other agreements, documents or instruments now or
hereafter executed and/or delivered pursuant to the terms hereof or pursuant to
the terms of the Loan Agreement, as amended hereby, are (if and to the extent
necessary) hereby amended so that any reference in such Loan Documents to the
Loan Agreement shall mean a reference to the Loan Agreement as amended hereby.
13. 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.
15. SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of the Lender, the Lender, the Borrowers and any other Loan
Parties and their respective successors and assigns; PROVIDED, HOWEVER, that the
Borrowers may not assign or transfer any of their rights or obligations
hereunder without the prior written consent of the Lender.
16. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
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Third Amendment to Amended and Restated Revolving
Line of Credit Loan and Security Agreement, Joinder,
Assumption and Ratification Agreement - Page 5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers effective as of the day
and year first above written.
BORROWER:
ESSEX CORPORATION, a Virginia corporation
By: /S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
THE WINDERMERE GROUP, LLC,
a Maryland limited liability company
By: /S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
WINDERMERE INFORMATION TECHNOLOGY SYSTEMS, LLC,
a Maryland limited liability company
By: /S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
WINDERMERE HDS, LLC,
a Maryland limited liability company
By: /S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Third Amendment to Amended and Restated Revolving
Line of Credit Loan and Security Agreement, Joinder,
Assumption and Ratification Agreement - Page 6
ADAPTIVE OPTICS ASSOCIATES, INC.,
a Delaware corporation
By: /S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
BANK OF AMERICA, N.A.
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President
Third Amendment to Amended and Restated Revolving
Line of Credit Loan and Security Agreement, Joinder,
Assumption and Ratification Agreement - Page 7
