SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
SECOND AMENDMENT TO
This
Second Amendment to Loan and Security Agreement
(“Amendment”)
is entered into as of June 8, 2018 between Comerica Bank (“Bank”) and MobileSmith,
Inc., a Delaware corporation (“Borrower”).
RECITALS
A. Borrower
and Bank are parties to that Loan and Security Agreement dated June
9, 2014, (as amended by the First Amendment to Loan and Security
Agreement dated as of May 24, 2016, the “Agreement”).
B. The
parties desire to further amend the Agreement as set forth
herein.
NOW,
THEREFORE, the parties agree as follows:
1. Amendments to
Agreement:
(a) Exhibit A of the Agreement is
amended by amending and restating the definition of
“Revolving Maturity Date” to read in its entirety as
follows:
“Revolving
Loan Maturity Date” means June 9, 2020.
(b) Section 6.7 of the Agreement is
amended and restated in its entirety as follows:
6.7
Minimum Cash. Borrower shall
maintain a balance of Cash at Bank of not less than the applicable
amount for each period set forth in the following table, as cash
collateral with respect to the Obligations, which cash may be
applied by Bank in payment of interest accrued with respect to the
Obligations, and the amount of which cash shall be replenished by
Borrower to such minimum balance equal to the applicable amount for
each period set forth in the following table on each semi-annual
and annual anniversary of the Closing Date.
|
Period
|
Amount
|
|
From
the Closing Date through June 30, 2018
|
$125,000
|
|
From
July 1, 2018 through the Revolving Maturity Date
|
$162,500
|
2. No course of
dealing on the part of Bank or its officers, nor any failure or
delay in the exercise of any right by Bank, shall operate as a
waiver thereof, and any single or partial exercise of any such
right shall not preclude any later exercise of any such right.
Bank’s failure at any time to require strict performance by
Borrower of any provision shall not affect any right of Bank
thereafter to demand strict compliance and performance. Any
suspension or waiver of a right must be in writing signed by an
officer of Bank. BORROWER WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 1542, AS IT MAY BE AMENDED FROM TIME TO TIME, WHICH
STATES:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
3. Unless otherwise
defined, all initially capitalized terms in this Amendment shall be
as defined in the Agreement. The Agreement, as amended hereby,
shall be and remains in full force and effect in accordance with
its terms and hereby is ratified and confirmed in all respects.
Except as expressly set forth herein, the execution, delivery, and
performance of this Amendment shall not operate as a waiver of, or
as an amendment of, any right, power, or remedy of Bank under the
Agreement, as in effect prior to the date hereof.
4. Borrower waives,
discharges, and forever releases Bank, Bank’s employees,
officers, directors, attorneys, stockholders, and their successors
and assigns, from and of any and all claims, causes of action,
allegations or assertions that Borrower has or may have had at any
time up through and including the date of this Amendment, against
any or all of the foregoing, regardless of whether any such claims,
causes of action, allegations or assertions are known to Borrower
or whether any such claims, causes of action, allegations or
assertions arose as result of Bank’s actions or omissions in
connection with the Loan Documents, or any amendments, extensions
or modifications thereto, or Bank’s administration of the
Obligations or otherwise.
5. Borrower represents
and warrants that the representations and warranties contained in
the Agreement are true and correct in all material respects as of
the date of this Amendment, and that no Event of Default has
occurred and is continuing.
6. As a condition to
the effectiveness of this Amendment, Bank shall have received, in
form and substance satisfactory to Bank, the
following:
(a) this Amendment,
executed by Borrower;
(b) a
Certificate of the Chief Executive Officer of Borrower with respect
to incumbency and resolutions authorizing the execution and
delivery of this Amendment;
(c) a facility fee, in
the amount of $12,500, which fee is fully earned and
non-refundable, and which may be debited from Borrower’s
account;
(a) amendments to (i)
that certain Convertible Secured Subordinated Note Purchase
Agreement, dated November 14, 2007, and the Convertible Secured
Subordinated Promissory Notes issued thereunder, among Borrower and
the holders of such Convertible Secured Subordinated Promissory
Notes, extending the maturity date of such Convertible Secured
Subordinated Promissory Notes to no earlier than November 14, 2020,
duly executed by Borrower and the holders of such Convertible
Secured Subordinated Promissory Notes, (ii) that certain
Convertible Subordinated Note Purchase Agreement, dated as of
December 11, 2014, and the Convertible Subordinated Promissory
Notes issued thereunder, among Borrower and the holders of such
Convertible Subordinated Promissory Notes, extending the maturity
date of such Convertible Subordinated Promissory Notes to no
earlier than November 14, 2020, duly executed by Borrower and the
holders of such Convertible Subordinated Promissory Notes, (iii)
that certain Subordinated Promissory Note, dated March 9, 2018,
among Borrower and Advance Modernization Services, extending the
maturity date of such Subordinated Promissory Note to no earlier
than November 14, 2020, duly executed by Borrower and Advance
Modernization Services, and (iv) that certain Subordinated
Promissory Note, dated May 11, 2018, among Borrower and Cresco Ltd,
extending the maturity date of such Subordinated Promissory Note to
no earlier than November 14, 2020, duly executed by Borrower and
Cresco Ltd;
(b) an amendment to the
UBS SBLC issued by UBS AG in favor of Bank as beneficiary,
providing Bank the right to draw on the UBS SBLC upon Bank’s
receipt of a notice of non-renewal, duly executed by UBS
AG;
(c) all reasonable Bank
Expenses incurred through the date of this Amendment, which may be
debited from any of Borrower’s accounts; and
(d) such other
documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate.
7. This Amendment may
be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
instrument.
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follows]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.
By: /s/ Xxxx
Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
Title: CFO
COMERICA
BANK
By: /s/ Xxxxxxx
Xxxx
Name: Xxxxxxx Xxxx
Title:
Vice
President
