Exhibit 99.3(b)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is made
and executed as of the 14th day of November, 2001 by and among DIVINE, INC., as
a Lender, and DATA RETURN CORPORATION ("Borrower").
PRELIMINARY STATEMENTS:
WHEREAS, Borrower entered into a certain Credit Agreement dated as of
November 1, 2001 (the "Original Credit Agreement;" the Original Credit
Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time, including, without limitation, as amended by this
Agreement, is referred to herein as the "Credit Agreement;" capitalized terms
defined in the Credit Agreement and used, but not otherwise defined, in this
Agreement shall have those meanings assigned to such terms in the Original
Credit Agreement) with the Lender; and
WHEREAS, in connection with and pursuant to the Original Credit
Agreement, Borrower issued to Lender a certain Note, dated November 1, 2001, in
the original principal amount of Twelve Million Eight Hundred Thousand Dollars
And No Cents ($12,800,000.00) (the "Note"); and
WHEREAS, in connection with and pursuant to the Original Credit
Agreement, Borrower entered into a Security Agreement and an Intellectual
Property Security Agreement, each dated November 1, 2001 (collectively, the
"Security Agreements"); and
WHEREAS, upon the terms and subject to the conditions set forth
hereinbelow, the parties have agreed to amend the Original Credit Agreement in
the manner set forth hereinbelow and consent to certain other matters;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. As of the date hereof, Section 3.6(a) of the Original Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"3.6 CONVERSION. (a) Upon termination of the Merger
Agreement pursuant to Sections 8.2(d), 8.3(a) or 8.3(b) thereof (the
"Conversion Date"), all Loans and Obligations shall be automatically
be converted (the "Conversion") into the number of shares of Common
Stock of Borrower equal to the quotient of (1) the aggregate amount of
Loans and Obligations (without duplication) then outstanding as of the
Conversion Date, and (b) Ninety Four Cents ($0.94)."
2. All terms, provisions and conditions of this Agreement,
including, without limitation, the amendment to the Original Credit Agreement
set forth in SECTION 1 of this Agreement, shall become effective and in full
force on the date hereof and shall remain effective and in full force.
3. The Borrower hereby confirms that the Security Agreements and all
collateral encumbered thereby, will continue to secure to the fullest extent
possible, the payment and performance of all Loan and Obligations, including,
without limitation, the payment and performance of all Loans and Obligations of
the Borrower now or hereafter existing under or in respect of the Credit
Agreement, the Note and the other Loan Documents. The Borrower further
acknowledges and agrees that the Security Agreements are and shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable (subject to bankruptcy, insolvency, reorganization, moratorium,
and other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity regardless of whether that
enforceability is considered in a proceeding at law or in equity)) and shall not
be impaired or limited by the execution or effectiveness of this Agreement.
4. Borrower hereby represents and warrants that Borrower has all
requisite power and authority to enter into this Agreement and perform hereunder
and this Agreement is legal, valid and binding against Borrower enforceable
against Borrower in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, and other laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
regardless of whether that enforceability is considered in a proceeding at law
or in equity).
5. The Borrower hereby acknowledges and agrees that this Agreement
and the amendment contained herein does not constitute any course of dealing or
other basis for altering any obligation of the Borrower or any rights, privilege
or remedy of Lender under the Credit Agreement, any other Loan Document, any
other agreement or document, or any contract or instrument.
6. Except for the amendment specifically set forth in this
Agreement, the Credit Agreement, the Loan Documents, any related document,
instrument or agreement and each and all of the respective terms and conditions
thereof remain unchanged and in full force and effect.
7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS. THIS AGREEMENT AND THE PARTIES HERETO
SHALL BE FURTHER GOVERNED BY AND SUBJECT TO THE TERMS AND CONDITIONS OF SECTIONS
13.3 AND 13.4 OF THE ORIGINAL CREDIT AGREEMENT, WITH RESPECT TO MATTERS RELATING
TO PERSONAL JURISDICTION, SERVICE OF PROCESS, WAIVERS OF TRIAL BY JURY AND OTHER
MATTERS DESCRIBED IN SUCH SECTIONS.
8. The provisions of this Agreement shall be binding upon and inure
to the benefit of the respective representatives, successors, and assigns of the
parties hereto; PROVIDED, HOWEVER, that no interest herein may be assigned by
either party without the prior written consent of the other. The rights and
benefits of Lender hereunder shall inure to any party acquiring any interest in
the Obligations or any part thereof; provided,
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however, that no assignment may be made by Lender except in accordance with the
immediately preceding sentence.
9. This Agreement, together with the Original Credit Agreement, the
Loan Documents and any related document, instrument or agreement, embody the
entire agreement and understanding with respect to the subject matter hereof and
of such documents, instruments and agreements and supersede all prior agreements
and understandings relating to such subject matter.
10. Unless the context otherwise requires, use of the singular number
in this Agreement shall include the plural number and vice versa, and use of one
gender herein shall include each other gender and vice versa. Use of the words,
"hereof", "herein", "hereto"; "hereby", "hereunder", or words of similar import
in this Agreement refer to this Agreement as a whole and not to any specific
paragraph, subparagraph, section, subsection, sentence, clause or part of this
Agreement. From and after the date hereof, any reference in the Credit Agreement
or any other Loan Documents, including, without limitation, the Note, to the
Credit Agreement or words of similar import shall be and shall be deemed to be a
reference to the Original Credit Agreement, as supplemented, amended and
modified by this Agreement.
11. This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which, when so
executed, shall be deemed an original, and all of which, when taken together,
shall constitute one and the same document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. NEXT PAGE IS THE SIGNATURE PAGE.]
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IN WITNESS WHEREOF, each of the parties hereto has caused its
respective officer thereunto duly authorized to execute and deliver this
Agreement as of the first date written above.
DIVINE, INC.,
AS LENDER
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President, General Counsel and Secretary
DATA RETURN CORPORATION
By: /s/ Sunny X. Xxxxxxxxxx
Name: Sunny X. Xxxxxxxxxx
Title: Chairman and CEO
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