EXHIBIT 10.1
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment") dated
as of November 11, 2004, by and between BANK OF AMERICA BUSINESS CAPITAL
CORPORATION (successor by merger to Fleet Capital Corporation formerly known as
Summit Business Capital Corporation) ("Lender") and EMTEC, INC. ("Borrower").
BACKGROUND
A. Borrower and Lender executed a Loan and Security Agreement dated as
of November 21, 2001 (the "Original Loan Agreement") pursuant to which Lender
made available to Borrower a revolving credit facility in the maximum principal
amount of Ten Million Dollars ($10,000,000.00) (the "Revolving Credit"). The
Original Loan Agreement as amended prior to the date hereof, as amended hereby
and from time to time hereafter shall be referred to herein as the "Loan
Agreement."
B. The Revolving Credit was and is evidenced by a certain amended and
restated revolving credit note executed by Borrower amended and restated as of
June 17, 2003, payable to the order of Lender in the maximum principal amount of
$11,500,000.00 (the "Note").
C. Pursuant to an Amendment to Loan and Security Agreement dated as of
June 17, 2003 between Borrower and Lender, the Revolving Credit was increased on
a temporary basis from $10,000,000 to $11,500,000. Pursuant to an Amendment to
Loan and Security Agreement dated as of October 17, 2003 between Borrower and
Lender, the Revolving Credit was decreased to $10,000,000, the advance rate on
Eligible Advances was decreased to 80%, the Loan Agreement was otherwise amended
and certain Events of Defaults were waived as set forth therein. Pursuant to an
Amendment to Loan and Security Agreement dated as of April 16, 2004 between
Borrower and Lender, Lender permitted Borrower to enter into a $1,000,000 bond
indemnity agreement for issuance of a bid bond line (the "Surety Bond Line")
secured by a second lien on all assets of Borrower.
D. The Loan Agreement provides that: (i) the outstanding balance,
including all principal and all accrued but unpaid interest, is due and payable
in full on November 21, 2004 (the "Termination Date") and (ii) the Letter of
Credit expires on the Termination Date. Borrower has requested that Lender: (1)
extend the Termination Date to January 21, 2005, (2) provide that the Letter of
Credit renew each year unless terminated, and (3) otherwise amend the Loan
Agreement as set forth herein.
E. At Borrowers' request, Lender is willing to extend the Termination
Date to January 21, 2005, provide that the Letter of Credit renew each year
unless terminated
and otherwise amend the Loan Agreement subject to the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
1. Borrower and Lender agree to modify the terms and conditions of
Borrower's obligations to Lender and Lender's obligations to Borrower under the
Loan Agreement in accordance with the terms and conditions set forth herein. The
parties hereto agree that all the terms and conditions of the Loan Agreement
shall continue unchanged and remain in full force and effect except as amended
herein as follows:
(A) From and after the date hereof, Section 1.1.2 of the Loan
Agreement is hereby amended to add subsections 1.1.2(a) and (b) which shall read
as follows:
(a) Lender hereby agrees that the Letter of Credit may be
extended for additional periods of up to one (1) year each provided
that renewal of the Letter of Credit, at Lender's discretion, shall
be available upon written request from Borrower to Lender at least
sixty (60) days before the date upon which notice of renewal is
otherwise required.
(b) Cash collateral delivered to Lender in accordance with
subsection 3.2.1 of this Agreement shall be maintained in a deposit
account of Borrower to be established with Lender at the time such
cash collateral is first created, over which Lender shall have sole
control (the "Letter of Credit Cash Collateral Account"). Borrower
hereby grants, bargains, conveys and sets over to Lender a security
interest in and lien upon the Letter of Credit Cash Collateral
Account and all cash and any other assets at any time hereafter
contained therein as security for the payment and performance of all
of Borrower's obligations now or hereafter incurred hereunder, under
the Note or otherwise in connection herewith. Borrower shall take
such action and execute and deliver such documents, including
financing statements, as Lender may determine necessary or desirable
to further the security interest hereby created. After the
occurrence of an Event of Default and acceleration of the Revolving
Credit Loans, or if Borrower shall have failed to pay all amounts
which have come due on or prior to such applicable due date, Lender
shall apply all funds held in the Letter of Credit Cash Collateral
Account in such manner as Lender may deem advisable.
(B) Subsection 3.2.1 of the Loan Agreement is hereby amended to
incorporate the following sentence which shall read as follows:
On the Termination Date, if the Letter of Credit remains outstanding
on such date, Borrower shall deposit into the Letter of Credit Cash
Collateral
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Account an amount equal to 105% of the face amount of the
Letter of Credit, as determined by Lender.
(C) The following definition contained in Appendix A of the Loan
Agreement is hereby amended to read as follows:
Termination Date - the earlier of (a) January 21, 2005 or (b) the
date on which the obligation of Lender to make Loans hereunder is
terminated whether pursuant to Section 4.2 of this Agreement or
otherwise.
2. Lender's obligations hereunder and under the Loan Agreement are
conditioned upon:
(A) the representations and warranties of Borrower contained in the
Loan Agreement being true and correct in all material respects as of the date
hereof after giving effect hereto and as of the date of each Revolving Credit
Loan;
(B) Borrower's compliance with the covenants contained in the Loan
Documents;
(C) Borrower's satisfaction of the conditions precedent set forth in
the Loan Agreement; and
(D) satisfaction of the following additional conditions precedent:
(1) Documents to be Delivered by Borrower. Borrower shall
deliver or cause to be delivered to Lender this Amendment duly executed by
Borrower;
(2) Payment of Certain Costs by Borrower. Borrower shall pay to
Lender all costs and out-of-pocket expenses (including, without limitation,
reasonable attorneys' fees and costs) of Lender in connection with the amendment
which includes, among other things, the preparation of this Amendment, all
related filings and recordation fees and taxes, and the enforcement of the Loan
Agreement and all costs and expenses incurred in connection with the above.
3. The parties agree that except as expressly amended hereby, the Loan
Agreement shall remain in full force and effect; and that the Collateral granted
therein or in connection therewith shall continue to secure Borrower's
obligations to Lender as therein stated.
4. Borrower reaffirms its obligation under the Loan Agreement and all
of the documents executed in connection therewith and/or securing Borrower's
obligations thereunder.
5. This Amendment shall become effective upon execution hereof by
Lender and Borrower.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed as of the date first above written.
BANK OF AMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Charles Kirschner
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Name: Charles Kirschner
Title: VP
EMTEC, INC.
By: /s/ Sam Bhatt
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Name: Sam Bhatt
Title: VP Finance