THIS
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”) is made
effective this 31th day of January, 2007 by and among LASALLE BUSINESS CREDIT, LLC,
successor by merger to LaSalle Business Credit, Inc., as Agent
(“Agent”) for LASALLE BANK MIDWEST NATIONAL ASSOCIATION
(formerly known as Standard Federal Bank National Association)
(“Lender”), MTS MEDICATION TECHNOLOGIES, INC. (formerly known
as Medical Technology Systems, Inc.) (“MTS”) and MTS PACKAGING
SYSTEMS, INC. (“Packaging”, and with MTS, each a
“Borrower” and collectively, the “Borrowers”).
BACKGROUND
| A. |
Agent,
Lender and Borrowers previously entered into that certain Loan and Security Agreement
dated June 26, 2002 (as amended by that certain First Amendment to Loan and Security
Agreement dated July 8, 2003, that certain Second Amendment to Loan and Security
Agreement dated June 18, 2004, that certain Third Amendment to Loan and
Security Agreement dated February 22, 2006, that certain Fourth Amendment to
Loan and Security Agreement dated November 30, 2006 and as the same may be
further amended, modified, supplemented or restated from time to time, the
“Loan Agreement”). |
| B. |
Borrowers
have requested that, inter alia, (1) the Agent and Lender consent to the
certain transactions, (2) notwithstanding any contrary provision of the Loan
Agreement or any document relating thereto, the German Subsidiary (as defined
below) not be required to grant a security interest in any of its assets, (3)
notwithstanding any contrary provision of the Loan Agreement, or any document
related thereto, the German Subsidiary be permitted to maintain its assets in
any location outside the United States as the German Subsidiary may desire and
(4) Agent and Lender agree to amend the Loan Agreement in accordance with the
terms and conditions set forth herein. |
| C. |
Capitalized
terms used herein and not otherwise defined shall have the meanings provided
for such terms in the Loan Agreement. |
NOW
THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows:
| 1. |
Lender’s
Consents and Agreements Regarding the German Subsidiary and Proposed Loan. |
| |
(a) |
Borrowers
have informed Agent and Lender that MTS Medication Technologies Limited, a
wholly owned Subsidiary of MTS and a company formed under the laws of England
and Wales, (formerly known as MTS Packaging Systems International, Ltd., “UK
Company”), desires to acquire all the stock (the “Acquisition”)
of CDH Consilio GmbH, a limited liability company formed under the laws of
Germany (“German Subsidiary”). |
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(b) |
MTS
desires to make a loan to UK Company in an amount not to exceed Three Hundred
Thirty Thousand Dollars ($330,000.00), the proceeds of which will be used to
fund a portion of the purchase price in connection with the Acquisition (the “Proposed
Loan”). |
| |
(c) |
Agent
and Lender hereby consent and agree to the Proposed Loan and the Acquisition
and, solely for the purpose of avoiding the occurrence of a Default or Event of
Default which could be caused by the Proposed Loan and/or the Acquisition,
waives Borrowers’ and Guarantors’ compliance with those provisions of
the Loan Agreement and each of the Other Agreements which would prohibit the
Proposed Loan or the Acquisition. |
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(d) |
Agent
and Lender hereby consent and agree to the following with respect to the German
Subsidiary (notwithstanding any contrary provision in the Loan Agreement or any
documents related thereto): (i) UK Company may form the German Subsidiary as a
wholly-owned, direct or indirect Subsidiary of UK Company, (ii) German Subsidiary
shall not be required to become a Guarantor or a Borrower under the
Loan Agreement, or to xxxxx x xxxx or security interest on any of its assets or
property. Agent’s and Lender’s consent and waiver set forth in this
Section 1 herein is contingent upon the execution and
delivery to Agent of the following documents, each of which shall be in form
and content satisfactory to Agent: |
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(i) |
Certified
copies of the formation and governing documents of the German Subsidiary; and |
| |
(ii) |
Fully
executed copies of all documents executed in connection with the Acquisition. |
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(e) |
The
consent and waiver contained in this Section 1 is given
solely in connection with the Acquisition and the Proposed Loan. Nothing in
this Amendment nor in any of the documents executed in connection herewith
shall be deemed an obligation, agreement or commitment by Agent and/or Lender
to consent to any other transactions which would be prohibited by the terms and
conditions of the Loan Agreement or any of the Other Agreements. |
| 2. |
Dissolution
of Certain Subsidiaries. |
| |
(a) |
Borrowers
have informed Agent that Borrowers desire to dissolve Medication Management
Technologies, Inc., Medication Management Systems, Inc. and Medical Technology
Laboratories, Inc. (collectively the “US Subsidiaries” and
each a “US Subsidiary”). Contemporaneously with the
dissolution of the US Subsidiaries, each US Subsidiary will assign all of its
assets to MTS (collectively, the “Dissolution”). |
| |
(b) |
Agent
and Lender hereby consent to the Dissolution and, solely for the purpose of
avoiding the occurrence of a Default or Event of Default which could be caused
by the Dissolution, waive Borrowers’ and Guarantors compliance with those
provisions of the Loan Agreement and Other Agreements which would prohibit the
Dissolution. Agent’s and Lender’s consent and waiver set forth in Section
2hereof is contingent upon the execution and delivery to Agent of the
following documents, each of which shall be in form and content satisfactory to
Agent: |
| |
(i) |
Copy
of the resolutions of the Board of Directors and shareholders of for each US
Subsidiary authorizing the dissolution of such US Subsidiary and the transfer
of all its assets to MTS, certified to be true and correct by the Secretary of
such US Subsidiary; |
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(ii) |
Copy
of Articles of Dissolution for each US Subsidiary, certified to be true and
correct by the Secretary of State of the applicable jurisdiction; |
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(iii) |
Copies
of all other material documents executed by each US Subsidiary in connection
with the Dissolution, evidencing the transfer of all its assets to MTS; |
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(iv) |
A
fully executed Third Amendment to Securities Pledge Agreement (“Securities
Pledge”); and |
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(v) |
Such
other documents as Agent or Lender may require in order to maintain its liens
on all of the assets of MTS. |
| |
(c) |
The
consent and waiver contained in this Section 2 is given
solely in connection with the Dissolution. Nothing in this Amendment nor in any
of the documents executed in connection herewith shall be deemed an obligation,
agreement or commitment by Agent and/or Lender to consent to any other
transactions which would be prohibited by the terms and conditions of the Loan
Agreement or any of the Other Agreements. |
| 3. |
Schedule
11(p). Schedule 11(p) to the Loan Agreement is hereby deleted and replaced with
Schedule 11(p) attached hereto. |
| 4. |
Amendment/References.
The Loan Agreement and the Other Agreements are hereby amended to be consistent with the
terms of this Amendment. All references in the Loan Agreement and the Other Agreements to
(a) the “Loan Agreement”shall mean the Loan Agreement as amended hereby; and
(b) the “Other Agreements”shall include, without limitation, this
Amendment, the Securities Pledge and all other instruments or agreements
executed pursuant to or in connection with the terms hereof. |
| 5. |
Release. Each
Borrower and each Guarantor acknowledges and agrees that it has no claims, suits or
causes of action against Agent or Lender and hereby remises, releases and forever
discharges Agent, Lender, their officers, directors, shareholders, employees, agents,
successors and assigns from any claims, suits or causes of action whatsoever, in law or
equity, which either Borrower or any Guarantor has or may have arising from any act,
omission or otherwise, at any time up to and including the date of this Amendment. |
| 6. |
Additional
Documents; Further Assurances. Borrowers shall take such other actions and
execute and deliver to Agent, or to cause to be executed and delivered to
Agent, at the sole cost and expense of Borrowers, from time to time, all
documents, agreements, statements, certificates and information as Agent shall
reasonably request to evidence or effect the terms of the Loan Agreement, as
amended, or any of the Other Agreements, as amended, or to enforce or protect
Agent’s interest in all Collateral. All such documents, agreements,
statements, certificates and information shall be in form and content
acceptable to Agent. |
| 7. |
Further
Agreements and Representations. Each Borrower does hereby: |
| |
(a) |
ratify,
confirm and acknowledge that, as amended hereby, the Loan Agreement and all
Other Agreements are valid, binding and in full force and effect; |
| |
(b) |
covenant
and agree to perform all obligations of such Borrower contained herein, in the
Loan Agreement and in the Other Agreements, as amended hereby; |
| |
(c) |
acknowledge
and agree that as of the date hereof, such Borrower has no defense, set-off,
counterclaim or challenge against the payment of any sums owing under the Loan
Agreement or any of the Other Agreements or the enforcement of any of the terms
or conditions thereof; |
| |
(d) |
represent
and warrant that no Default or Event of Default exists under the Loan Agreement; |
| |
(e) |
acknowledge
and agree that nothing contained herein and no actions taken pursuant to the
terms hereof is intended to constitute a novation of the Loan Agreement or any
of the Other Agreements, and does not constitute a release, termination or
waiver of any of the liens, security interests, rights or remedies granted to
Agent therein, which liens, security interests, rights and remedies are hereby
ratified, confirmed, extended and continued as security for the Liabilities as
amended; and |
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(f) |
acknowledge
and agree that such Borrower’s failure to comply with or perform any of
its covenants, agreements or obligations contained in this Amendment shall
constitute an Event of Default under the Loan Agreement and each of the Other
Documents as amended. |
| 8. |
Fees, Costs, Expenses and Expenditures.
Each Borrower agrees to pay all of Agent’s
expenses in connection with the review, preparation, negotiation, documentation
and closing of this Amendment and the consummation of the transactions
contemplated hereunder, including, without limitation, fees, disbursements,
expenses and disbursements of counsel retained by Agent and all fees related to
filings, recording of documents and searches, whether or not the transactions
contemplated hereunder are consummated. |
| 9. |
No Waiver.
Nothing contained herein constitutes an agreement or obligation by
Agent or Lender to grant any further amendments to the Loan Agreement or any of
the Other Agreements. Except as expressly set forth in Sections 1 and 2 hereof, nothing
contained herein constitutes a waiver or release by Agent or Lender of any
Event of Default or of any rights or remedies available to Agent or Lender
under the Loan Agreement or any of the Other Agreements or at law or in equity. |
| 10. |
Inconsistencies.
To the extent of any inconsistency between the terms and conditions of this
Amendment and the terms and conditions of the Loan Agreement or the Other
Agreements, the terms and conditions of this Amendment shall prevail. All terms
and conditions of the Loan Agreement and the Other Agreements not inconsistent
herewith shall remain in full force and effect and are hereby ratified and
confirmed by Borrowers. |
| 11. |
Binding Effect.
This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns. |
| 12. |
Governing Law.
This Amendment shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania without regard to conflict of law
principles. |
| 13. |
Severability.
The provisions of this Amendment, the Loan Agreement and the Other Agreements are
deemed to be severable, and the invalidity or unenforceability of any provision
shall not affect or impair the remaining provisions which shall continue in
full force and effect. |
| 14. |
Modifications.
No modification of this Amendment or any of the Other Agreements shall be binding
or enforceable unless in writing and signed by or on behalf of the party
against whom enforcement is sought. |
| 15. |
Headings.
The headings of the articles, sections, paragraphs and clauses of this Amendment
are inserted for convenience only and shall not be deemed to constitute a part
of this Amendment. |
| 16. |
Counterparts.
This Amendment may be executed in multiple counterparts, each of which shall
constitute an original and all of which together shall constitute the same
agreement. |
[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
effective as of the day and year first above written.
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|
MTS MEDICATION TECHNOLOGIES, INC.
(formerly known as Medical Technology Systems, Inc. |
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|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President
and Chief Financial Officer |
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|
MTS PACKAGAING SYSTEMS, INC. |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President |
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|
LASALLE BUSINESS CREDIT,
LLC, successor by merger to LaSalle Business Credit, Inc.,
as Agent for LaSalle Bank Midwest National Association, formerly known as Standard
Federal Bank National Association |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxx X. XXxxxxx, Vice President |
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|
LASALLE BANK MIDWEST NATIONAL ASSOCIATION (formerly known as Standard Federal Bank
National Association) |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxx X. XXxxxxx, Vice President |
5
[SIGNATURES CONTINUED
FROM PREVIOUS PAGE]
Each
of the undersigned, intending to be legally bound hereby, consents and agrees to the
foregoing Fifth Amendment to Loan and Security Agreement dated of even date herewith (the
“Agreement”), and all terms thereof and further agrees that such
Agreement shall in no way affect or impair the undersigned’s obligations under those
certain Continuing Unconditional Guaranties from the undersigned to Lender dated June 26,
2002, July 8, 2003 and February 22, 2006, as applicable (collectively, the
“Guaranties”), or under any other documents executed or delivered
pursuant thereto or in connection therewith and the terms of the Guaranties are hereby
ratified and confirmed, all as of the date hereof.
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|
MTS MEDICATION TECHNOLOGIES
LIMITED (formerly known as MTS Packaging Systems International Ltd.) |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President
and Chief Financial Officer |
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|
MEDICATION MANAGEMENT TECHNOLOGIES, INC. |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President |
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|
MEDICAL TECHNOLOGY LABORATORIES, INC. |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President |
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|
MEDICATION MANAGEMENT SYSTEMS, INC. |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President |
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|
BAF PRINTERS LIMITED |
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|
|
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|
By: |
___________________________________ |
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|
Name/Title: |
Xxxxxxx X. Xxxxxx, Vice President |
6
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ___ day of ___________, 2007, before me, a notary public, the undersigned
member, personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the
Vice President of MTS MEDICATION TECHNOLOGIES LIMITED, a company formed under the
laws of England and Wales, and that he/she as such officer of such company, being
authorized to do so executed the foregoing instrument for the purposes therein contained,
by signing the name of the company by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ______ day of _____________, 2007, before me, a notary public, the undersigned
officer, personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the
Vice President of MTS MEDICATION TECHNOLOGIES, INC., a Delaware corporation, and
that he/she as such officer of such corporation, being authorized to do so executed the
foregoing instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
7
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ______ day of _____________, 2007, before me, a notary public, the undersigned
officer, personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the
Vice President of MTS PACKAGING SYSTEMS, INC., a Florida corporation, and that
he/she as such officer of such corporation, being authorized to do so executed the
foregoing instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ____ day of __________, 2007, before me, a notary public, the undersigned
officer, personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the
Vice President and CFO of MEDICATION MANAGEMENT TECHNOLOGIES, INC., a Florida
corporation, and that he/she as such officer of such corporation, being authorized to do
so executed the foregoing instrument for the purposes therein contained, by signing the
name of the corporation by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
8
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ____ day of __________, 2007, before me, a notary public, the undersigned
officer, personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the
Vice President of MEDICATION MANAGEMENT SYSTEMS, INC., a Florida corporation, and
that he/she as such officer of such corporation, being authorized to do so executed the
foregoing instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ___ day of _________, 2007, before me, a notary public, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the Vice
President of MEDICAL TECHNOLOGY LABORATORIES, INC., a Florida corporation, and that
he/she as such officer of such corporation, being authorized to do so executed the
foregoing instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
| STATE OF ________________________ |
: |
| |
SS: |
| COUNTY OF ______________________ |
: |
On
this, the ___ day of __________, 2007, before me, a notary public, the undersigned member,
personally appeared Xxxxxxx X. Xxxxxx, who acknowledged himself/herself to be the Vice
President of BAF PRINTERS LIMITED, a company formed under the laws of England and
Wales, and that he/she as such officer of such company, being authorized to do so executed
the foregoing instrument for the purposes therein contained, by signing the name of the
company by himself/herself as such officer.
IN WITNESS
WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My Commission Expires:
9
Schedule 11(p) – Parents,
Subsidiaries and Affiliates:
MTS Medication Technologies, Inc.
owns 100% of the capital stock of the following subsidiaries:
MTS Packaging Systems, Inc.
MTS Medication Technologies Ltd.
(formerly known as MTS Packaging Systems International Ltd.)
MTS Medication
Technologies Ltd. owns 100% of the capital stock of the following subsidiaries:
BAF Printers, LTD
GDH Consilio GmbH
