EXHIBIT 10.4


 


THIRD
AMENDMENT TO FORBEARANCE AGREEMENT


 


THIS THIRD AMENDMENT TO FORBEARANCE AGREEMENT (this “Amendment”) is
entered into this 23rd day of September, 2009, by and among HERCULES TECHNOLOGY GROWTH CAPITAL, INC. a
Maryland corporation (“Lender”),
and INFOLOGIX, INC., a Delaware corporation
(“Infologix”),
INFOLOGIX SYSTEMS CORPORATION, a
Delaware corporation (“ISC”), EMBEDDED TECHNOLOGIES, LLC, a Delaware limited liability
company (“Embedded”), OPT ACQUISITION, LLC, a Pennsylvania limited liability
company (“OPT”) and INFOLOGIX — DDMS, INC. a limited liability company (“DDMS”, and collectively with
Infologix, ISC, Embedded and Opt, “Borrower”).  Capitalized terms used herein without
definition shall have the same meanings given them in the Forbearance Agreement
(as defined below).


 


RECITALS


 


A.                                    Borrower and Lender have
entered into that certain Loan and Security Agreement dated as of May 1,
2008, Amendment No. 1 to the Loan and Security Agreement dated as of November 19,
2008, Amendment No. 2 to the Loan and Security Agreement dated as of May 31,
2009, (as may be amended, restated, or otherwise modified, the “Loan Agreement”),
pursuant to which Lender has agreed to extend and make available to Borrower
certain advances of money.


 


B.                                    Borrower and Lender have
entered into that certain Forbearance Agreement dated as of July 31, 2009,
as amended by the Amendment to Forbearance Agreement, dated as of August 14,
2009 and the Second Amendment to Forbearance Agreement dated as of August 20,
2009 (as so amended, the “Forbearance Agreement”),
pursuant to which Lender agreed to forbear from exercising its remedies under
the Loan Agreement as a result of the Specified Default, subject to the terms
and conditions, and for the period specified in the Forbearance Agreement.


 


C.                                    Borrower and Lender have
agreed to amend the Forbearance Agreement upon the terms and conditions more
fully set forth herein.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing Recitals and intending to be
legally bound, the parties hereto agree as follows:


 


1.                                      AMENDMENTS.


 


Section 1 —
Forbearance.  Section 1
of the Forbearance Agreement is deleted in its entirety and replaced with the
following:


 


“1.                                 Forbearance.  Absent the occurrence of any failure by
Borrower to perform its obligations set forth in this Agreement, Lender agrees
to forbear from exercising any remedies available to it under the Loan
Agreement, any of the other Loan Documents or Article 9 of the Uniform
Commercial Code, including without limitation any right of set-off, from the
date of this Agreement through and including the earlier of (i) October 12,
2009 and (ii) the occurrence of a Forbearance Termination Event (as
defined below)(such period, the “Forbearance Period”).”


 

















 


Section 2 —
Forbearance Termination Events.  Section 2
of the Forbearance Agreement is amended by deleting subparagraphs (i) and (ii) and
replacing them with the following:


 


“(i)                           Borrower fails
to deliver to Lender on or before October 5, 2009 an executed term sheet
providing for the terms and conditions of a restructure of the Loan Agreement
with Lender;


 


(ii)                                  Borrower fails
at any time to continue, in good faith, its negotiations with respect to a
restructure of the Loan Agreement with Lender;”


 


2.                                      BORROWER’S REPRESENTATIONS AND WARRANTIES.  Borrower represents and warrants that:


 


(a)                                  Borrower has the power and
authority to execute and deliver this Amendment and to perform its obligations
under the Loan Agreement, as amended by this Amendment;


 


(b)                                  the execution and delivery
by Borrower of this Amendment and the performance by Borrower of its
obligations under the Loan Agreement, as amended, have been duly authorized by
all necessary action on the part of Borrower; and


 


(c)                                  this Amendment has been duly
executed and delivered by Borrower and is the binding obligation of Borrower,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws of general application and equitable
principles relating to or affecting creditors’ rights.


 


Borrower understands and
acknowledges that Lender is entering into this Amendment in reliance upon, and
in partial consideration for, the above representations and warranties, and
agrees that such reliance is reasonable and appropriate.


 


3.                                      LIMITATION.  The
amendments set forth in this Amendment shall be limited precisely as written
and shall not be deemed (a) to be a waiver or modification of any other
term or condition of the Loan Agreement or of any other instrument or agreement
referred to therein or to prejudice any right or remedy which Lender may now
have or may have in the future under or in connection with the Loan Agreement
or any instrument or agreement referred to therein; or (b) to be a consent
to any future amendment or modification or waiver to any instrument or
agreement the execution and delivery of which is consented to hereby, or to any
waiver of any of the provisions thereof. 
Except as expressly amended hereby, the Loan Agreement shall continue in
full force and effect.


 


4.                                      EFFECTIVENESS.  This
Amendment shall become effective upon the satisfaction of all the following
conditions precedent:


 


4.1                               Amendment.  Borrower and Lender shall have duly executed
and delivered this Amendment to Lender.


 


2

















 


5.                                      COUNTERPARTS.  This
Amendment may be signed in any number of counterparts, and by different parties
hereto in separate counterparts, with the same effect as if the signatures to
each such counterpart were upon a single instrument.  All counterparts shall be deemed an original
of this Amendment.


 


6.                                      INTEGRATION.  This
Amendment and any documents executed in connection herewith or pursuant hereto
contain the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements, understandings, offers and
negotiations, oral or written, with respect thereto and no extrinsic evidence
whatsoever may be introduced in any judicial or arbitration proceeding, if any,
involving this Amendment; except that any financing statements or other
agreements or instruments filed by Lender with respect to Borrower shall remain
in full force and effect.


 


7.                                      GOVERNING LAW; VENUE.  THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.  Borrower and Lender each
submit to the exclusive jurisdiction of the State and Federal courts in Santa
Clara County, California.


 


[signature
page follows]


 


3

















 


IN WITNESS WHEREOF, the parties have duly
authorized and caused this Amendment to be executed as of the date first
written above.


 


	
  BORROWER:

  	
   

  
	
   

  	
   

  
	
  INFOLOGIX, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John A. Roberts

  	
   

  
	
   

  	
   

  
	
  Name: Jay Roberts

  	
   

  
	
   

  	
   

  
	
  Title: Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
  INFOLOGIX SYSTEMS CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John A. Roberts

  	
   

  
	
   

  	
   

  
	
  Name: Jay Roberts

  	
   

  
	
   

  	
   

  
	
  Title: Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
  OPT ACQUISITION, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John A. Roberts

  	
   

  
	
   

  	
   

  
	
  Name: Jay Roberts

  	
   

  
	
   

  	
   

  
	
  Title: Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
  EMBEDDED TECHNOLOGIES, LLC

  	
   

  
	
  By: INFOLOGIX, INC. its
  sole member

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John A. Roberts

  	
   

  
	
   

  	
   

  
	
  Name: Jay Roberts

  	
   

  
	
   

  	
   

  
	
  Title: Chief Financial
  Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  INFOLOGIX — DDMS, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John A. Roberts

  	
   

  
	
   

  	
   

  
	
  Name: Jay Roberts

  	
   

  
	
   

  	
   

  
	
  Title: Chief Financial Officer

  	
   

  



 

















 


	
  LENDER:

  	
   

  
	
   

  	
   

  
	
  HERCULES
  TECHNOLOGY GROWTH CAPITAL, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ K. Nicholas Martitsch

  	
   

  
	
   

  	
   

  
	
  Name: K. Nicholas
  Martitsch

  	
   

  
	
   

  	
   

  
	
  Title:
  Associate General Counsel