1
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fifth Amendment to Loan and Security Agreement ("Fifth
Amendment") is made as of May 15, 1995 by and between SANWA BUSINESS CREDIT
CORPORATION ("Lender") and Rexon Incorporated, a Delaware corporation
("Rexon"), Rexon Software, Inc., a California corporation ("Rexon Software"),
Rexon/Tecmar, Inc., a California corporation, Scientific Solutions, Inc., an
Ohio corporation, Sytron Corporation, a Delaware corporation ("Sytron"),
WangDAT, Inc., a California corporation, and Wangtek, Inc., a California
corporation (each a "Borrower", collectively, the "Borrowers").
WHEREAS, Lender and Borrowers entered into a Loan and Security
Agreement dated as of October 5, 1994, as amended by the First Amendment to
Loan and Security Agreement dated as of October 17, 1994, the Second Amendment
to Loan and Security Agreement dated as of December 27, 1994, the Third
Amendment to Loan and Security Agreement dated as of March 24, 1995 and the
Fourth Amendment to Loan and Security Agreement dated as of April 15, 1995
(collectively, the "Loan Agreement") pursuant to which Lender is making certain
loans or other credit facilities available to Borrowers upon the terms and
conditions set forth in the Loan Agreement and the related Ancillary
Agreements; and
WHEREAS, Borrowers have requested and Lender has agreed to certain
waivers, modifications and amendments to the Loan Agreement as set forth in
this Fifth Amendment.
NOW, THEREFORE, in consideration of the terms and conditions
herein, and of any loans or other credit facilities heretofore, now or
hereafter made to or for the benefit of Borrowers by Lender, the parties hereto
agree to the following amendments and modifications to the Loan Agreement:
1. Waiver. Lender hereby waives any Default arising under
Section 10.1(a)(ii) by reason of Borrowers failure to satisfy the requirement
for the ratio of Indebtedness minus Subordinated Debt to Tangible Net Worth set
forth therein for the 2nd fiscal quarter of 1995 ending March 31, 1995.
2. Amendments to Loan Agreement. Section 10.1(f) of the Loan
Agreement is hereby amended by adding a new subsection (vii) to the end thereof
as follows:
"(vii) as soon as available, but not later than forty-five (45)
days after the end of each fiscal quarter, a report for all Borrowers setting
forth any new applications for patents, trademarks or copyrights made or
granted during that quarter, and certified by a senior officer of Rexon."
-1-
2
3. Representations and Warranties. Borrowers represent and
warrant as follows:
(a) Each of the representations and warranties contained in the
Loan Agreement is hereby reaffirmed as of the date hereof, each as if set forth
herein;
(b) The execution, delivery and performance of this Fifth
Amendment are within Borrowers' powers, have been duly authorized by all
necessary action, have received all necessary approvals, if any, and do not
contravene any law or any contractual restrictions binding on Borrowers;
(c) This Fifth Amendment is a legal, valid and binding
obligation of Borrowers, enforceable against Borrowers in accordance with its
terms; and
(d) No event has occurred and is continuing or would result
from this Fifth Amendment which constitutes a Default under the Loan Agreement,
as amended and modified hereby.
4. Conditions. The effectiveness of this Fourth Amendment is
conditioned upon the full satisfaction by Borrowers of each of the following
conditions on or before May 15, 1995 or their waiver in writing by Lender:
(a) this Fifth Amendment and the Guarantor's Consent shall have
been executed by duly authorized signatories of the Borrowers and Guarantors
and delivered to Lender; and
(b) Borrowers shall have paid to Lender an amendment fee in the
amount of $15,000, which fee is fully earned as of the date of this Fifth
Amendment.
5. Miscellaneous. This Fifth Amendment shall be part of the
Loan Agreement, the terms of which are incorporated herein, and the breach of
any representation, warranty or covenant contained herein or the failure to
observe or comply with any term or agreement contained herein, shall constitute
a Default under the Loan Agreement and Lender shall be entitled to exercise all
rights and remedies it may have under the Loan Agreement and applicable law.
Borrowers agree to pay all costs, expenses and attorneys' fees incurred by
Lender in connection with the negotiation and preparation of this Fifth
Amendment and any other documents in connection herewith and in carrying out or
enforcing the terms of this Fifth Amendment. Lender is not waiving any rights
under the Loan Agreement and, except as expressly provided herein or as
previously modified in a writing signed by Lender, all of the terms, covenants,
and conditions of the Loan Agreement remain unmodified and in full force and
effect. Capitalized terms used
-2-
3
herein and not otherwise defined shall have the same meaning as set forth in
the Loan Agreement. This Fifth Amendment may be executed in counterparts,
which counterparts, when so executed and delivered, shall together constitute
but one original.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment to be effective as of the first date above written.
BORROWERS:
---------
REXON INCORPORATED, SCIENTIFIC SOLUTIONS, INC.
a Delaware corporation an Ohio corporation
By_______________________________ By______________________________
Title____________________________ Title___________________________
REXON/TECMAR, INC., SYTRON CORPORATION,
a California corporation a Delaware Corporation
By_______________________________ By______________________________
Title____________________________ Title___________________________
WANGTEK, INC., WANGDAT, INC.,
a California corporation a California corporation
By_______________________________ By______________________________
Title____________________________ Title___________________________
LENDER:
------
SANWA BUSINESS CREDIT CORPORATION
By_______________________________
Title____________________________
-3-
4
GUARANTORS' CONSENT
The undersigned Guarantors hereby acknowledge and consent to the foregoing
Fifth Amendment and reaffirm their respective guarantees, security agreements
and other documents executed by the undersigned in connection with the Loan
Agreement and agree that all such guarantees, security agreements and documents
are in full force and of effect.
"GUARANTORS"
REXON EUROPE, INC., a
Delaware corporation
By______________________________
Title___________________________
REXON INTERNATIONAL SALES CORPORATION,
a California corporation
By______________________________
Title___________________________
REXON INTERNATIONAL SERVICE CO.,
a Delaware corporation
By______________________________
Title___________________________
REXON SINGAPORE PTE LTD.,
a Singapore corporation
By______________________________
Title___________________________
-4-
5
REXON U.K., INC.,
a Delaware corporation
By______________________________
Title___________________________
SYTRON U.K., INC.,
a corporation
By______________________________
Title___________________________
TECMAR PUERTO RICO, INC.,
a Delaware corporation
By______________________________
Title___________________________
WANGTEK PUERTO RICO, INC.,
a Delaware corporation
By______________________________
Title___________________________
-5-