FIFTH AMENDMENT TO LOAN AND SECURITY
AGREEMENT
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
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A.
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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”).
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B.
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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.
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C.
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Capitalized
terms used herein and not otherwise defined shall have the meanings
provided for such terms in the Loan Agreement.
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NOW THEREFORE
, the parties hereto, intending to
be legally bound hereby, agree as follows:
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1.
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Lender’s Consents and Agreements Regarding
the German Subsidiary and Proposed Loan.
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(a)
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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)
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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”
).
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(c)
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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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1
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(d)
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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 grant a lien 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)
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Certified
copies of the formation and governing documents of the German
Subsidiary; and
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(ii)
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Fully executed
copies of all documents executed in connection with the
Acquisition.
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(e)
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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.
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2.
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Dissolution
of Certain Subsidiaries.
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(a)
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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”
).
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(b)
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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 2 hereof 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)
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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)
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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)
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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)
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A fully
executed Third Amendment to Securities Pledge Agreement (
“Securities Pledge” ); and
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2
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(v)
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Such other
documents as Agent or Lender may require in order to maintain its
liens on all of the assets of MTS.
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(c)
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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.
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3.
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Schedule
11(p). Schedule 11(p) to the Loan Agreement is hereby deleted and
replaced with Schedule 11(p) attached hereto.
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4.
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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.
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5.
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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.
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6.
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Additional
Documents; Further Assurances. Borrowers shall take such other
actions and execute and deliver to Agen
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