Exhibit 10.26
ASSUMPTION AND AMENDMENT
AGREEMENT
This Assumption Agreement (“
Agreement ”), dated as of October 20, 2004, is
made by and between Wells Fargo Bank, National Association (“
Bank ”) and Iteris Holdings, Inc., a Delaware
corporation (“ Holdings ”), successor by merger
to Iteris, Inc., a Delaware corporation (“ Original
Borrower ”).
R E C I T A
L S
A.
Reference is made to that certain
Credit Agreement dated as of May 27, 2004 between Bank and
Original Borrower, as “Borrower” (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”). Capitalized terms used and
not otherwise defined herein shall have the meanings given such
terms in the Credit Agreement
B.
In addition, to the Credit
Agreement, Original Borrower is a party to the certain other Loan
Documents, including without limitation each of the documents set
forth on Schedule I attacked hereto.
C.
Pursuant to a merger (the
“Merger”) described in a Certificate of Ownership and
Merger Merging Iteris, Inc. into Iteris Holdings, Inc.
dated as of 10/22/2004, 2004 between Original Borrower and Holdings
(the “Merger Agreement”; collectively with other
related documents, the (“Merger Documents”), the
existence of Original Borrower as a separate legal entity will be
terminated and Holdings, as the surviving corporation of the
Merger, will, by operation of law, succeeded to the liabilities and
assets of Original Borrower.
D.
Bank is agreeable to continuing the
Loan Documents in effect with Holdings pursuant to and in
accordance with the terms and conditions set forth below and, in
connection therewith, Bank and Holdings have agreed to certain
modifications to the Loan Documents as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of
the terms and conditions herein, and for other good and valuable
consideration, the receipt and adequacy of which are acknowledged,
the parties hereto agree to the following covenants, agreements,
amendments and modifications:
1.
Merger and
Assumption.
(a)
Holdings hereby
(i) acknowledges and affirms that it will perform and
discharge any and all of the obligations of Original Borrower under
the Loan Documents, and (ii) agrees to be bound by all the
terms, provisions and conditions of the Loan Documents with the
same force and effect as though Holdings were an original party
thereto.
1
(b)
The execution of
this Agreement by Holdings shall be deemed its execution of the
Credit Agreement and the other Loan Documents. This Agreement
does not (i) constitute the creation of a new obligation or
the extinguishment of the obligations evidenced by the Credit
Agreement or the other Loan Documents, or (ii) in any way
affect or impair the liens of the Loan Documents granted by
Original Borrower, each of which Holdings acknowledges to be valid
first liens on the property described therein (except as otherwise
set forth in the Loan Documents). Holdings agrees that the
liens of the Loan Documents granted by Original Borrower shall
continue in full force and effect, unimpaired and unaffected by
this Agreement or by the Merger.
2.
Representations and
Warranties .
Holdings makes the following representations and warranties to
Bank:
(a)
Holdings makes
all of the representations and warranties made by Borrower in the
Loan Documents, other than representations and warranties that
expressly speak as of a particular date;
(b)
The execution,
delivery and performance of this Agreement are within
Holdings’ powers, have been duly authorized by all necessary
action, have received all necessary approvals and do not contravene
any law or any contractual restrictions binding on
Holdings;
(c)
This Agreement
and, pursuant to the assumption described herein, the Loan
Documents, are the legal, valid and binding obligations of
Holdings, enforceable against Holdings in accordance with their
respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws relating to or affecting creditors’ rights
generally or equitable principles relating to the granting of
specific performance and other equitable remedies as a matter of
judicial discretion;
(d)
There are no
pending or, to the best of Holdings’ knowledge, threatened
actions, suits, proceedings or investigations before any
Governmental Authority, arbitrator or administrative agency which
could have a material adverse effect on the financial condition or
operation of Holdings other than those disclosed by Holdings, to
Bank in writing prior to the date hereof; and
(e)
The Merger has
become effective pursuant to the terms of the Merger Documents and
all applicable laws. All assets of Original Borrower existing
immediately prior to the Merger have become vested in Holdings,
subject to all the liabilities of Original Borrower immediately
prior to the Merger. All consents and a
