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EXHIBIT 10.2
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1, dated as of September 10, 1999, to the LOAN
AND SECURITY AGREEMENT, dated as of September 30, 1998 (hereafter modified,
amended and/or restated from time to time, the "Loan and Security Agreement"),
between FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), and
DATA SYSTEMS NETWORK CORPORATION, a Michigan corporation ("Borrower").
Preamble
Pursuant to the Loan and Security Agreement, Foothill
established a revolving line of credit for the benefit of Borrower. As of the
Closing Date, Borrower was also indebted to IBM Credit Corporation, which such
indebtedness was secured by certain Collateral, necessitating the negotiation
and execution of the Intercreditor Agreement pursuant to which the relative
rights and duties of Foothill and IBM Credit Corporation were set forth.
Borrower has now requested Foothill to make a term loan to Borrower, the
proceeds of which will be used to satisfy in full all outstanding indebtedness
of Borrower to IBM Credit Corporation. Based upon the terms and conditions set
forth herein, Foothill has agreed to extend to Borrower a term loan in the sum
of $926,000. Accordingly, Borrower and Foothill hereby agree as follows:
1. Definitions. All terms used herein which are defined
in the Loan and Security Agreement and not otherwise defined herein are used
herein as defined therein.
2. Definitions. Section 1.1 of the Loan and Security
Agreement is hereby amended (a) by inserting the words "the Term Loan and all
other" immediately after the words "'Obligations' means" in the definition of
the term Obligations and (b) by inserting the following definitions for the
terms "First Amendment Effective Date" and "Term Loan" where each would appear
in correct alphabetical order:
"'First Amendment Effective Date' means the
date upon which all of the conditions set forth in Section 5
of Amendment No. 1 to this Agreement shall have been satisfied
in full.
"'Term Loan' has the meaning set forth in
Section 2.3."
3. Term Loan. A new Section 2.3 to the Loan and
Security Agreement is hereby added as follows:
"2.3 TERM LOAN.
(a) Term Loan. Subject to the
terms and conditions of this Agreement, including but not
limited to Amendment No. 1 hereto, Foothill agrees to make a
term loan (the "Term Loan") to Borrower on the First Amendment
Effective Date, in an amount equal to $926,000. Foothill, upon
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satisfaction of the applicable conditions precedent set forth
herein and in Amendment No. 1 hereto, shall make the proceeds
of such Term Loans available to Borrower by transferring same
day funds equal to the proceeds of such Term Loan as directed
in writing by Borrower. All amounts outstanding under the Term
Loan shall constitute Obligations.
(b) Amortization. The Term
Loan shall be repaid in installments of principal in the
amount of $75,000. Each such installment shall be due and
payable on the first Business Day of each week commencing on
the first Business Day of the first week following the First
Amendment Effective Date and continuing on the first Business
Day of each succeeding week. On the earlier to occur of (x)
termination of this Agreement, whether by its terms, by
prepayment, by acceleration, or otherwise, or (y) December 1,
1999, the outstanding principal balance, and all accrued and
unpaid interest under the Term Loan, shall be due and payable
in full.
(c) Prepayments of Term Loan.
The unpaid principal balance of the Term Loan may be prepaid
in whole or in part without penalty or premium at any time
during the term of this Agreement upon three (3) days prior
written notice by Borrower to Foothill. All partial
prepayments of principal on the Term Loan will be applied to
installments due on the Term Loan in the inverse order of
their maturity."
4. Interest on Term Loan. (a) Section 2.6(a) is hereby amended
by adding the following sentence at the end thereof:
"Notwithstanding the foregoing, the Term Loan shall bear
interest at a per annum rate of two percentage points (2.0%)
above the Reference Rate."
(a) Section 2.6(c) is hereby amended by adding the following
sentence at the end thereof:
"Notwithstanding the foregoing, upon the occurrence and during
the continuation of an Event of Default, the Term Loan shall
bear interest at a per annum rate of five percentage points
(5.0%) above the Reference Rate."
5. Conditions. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions have been satisfied being herein called the "First
Amendment Effective Date"):
(a) The representations and warranties contained in this
Amendment and in Section 5 of the Loan and Security Agreement and each other
Loan Document shall be correct on and as of the First Amendment Effective Date
as though made on and as of such date (except where such representations and
warranties relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date); no Default or
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Event of Default shall have occurred and be continuing on the First Amendment
Effective Date or result from this Amendment becoming effective in accordance
with its terms.
(b) Foothill shall have received two (2) counterparts of this
Amendment, duly executed by Borrower.
(c) Foothill shall have a received a term loan origination fee
in the sum of Thirty Thousand Dollars ($30,000).
(d) Foothill shall have received a payoff letter from IBM
Credit Corporation and the proceeds of the Term Loan shall be used to satisfy,
in full, all of the outstanding Indebtedness and other obligations due IBM
Credit Corporation from Borrower.
(e) The Intercreditor Agreement shall have been terminated in
writing and IBM Credit Corporation shall have released all of its liens of
record which relate to the Collateral.
(f) All legal matters incident to this Amendment shall be
satisfactory to Foothill and its counsel.
6. Representations and Warranties. Borrower hereby represents
and warrants to Foothill as follows:
(a) Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan and (ii)
has all requisite corporate power, authority and legal right to execute, deliver
and perform this Amendment, and to perform the Loan and Security Agreement, as
amended hereby.
(b) The execution, delivery and performance of this Amendment
by Borrower, and the performance by Borrower of the Loan and Security Agreement,
as amended hereby (i) have been duly authorized by all necessary corporate
action, (ii) do not and will not contravene its charter or by-laws or any
applicable law, and (iii) except as provided in the Loan Documents, do not and
will not result in the creation of any Lien upon or with respect to any of its
respective properties.
(c) This Amendment and the Loan and Security Agreement, as
amended hereby, constitute the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with its terms.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other Person is required
in connection with the due execution, delivery and performance by Borrower of
this Amendment and the performance by the Borrower of the Loan and Security
Agreement as amended hereby.
(e) The representations and warranties contained in Section 5
of the Loan and Security Agreement and each other Loan Document are correct on
and as of the First Amendment Effective Date as though made on and as of the
First Amendment Effective Date (except to the extent such representations and
warranties expressly relate to an earlier date in which case such
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representations and warranties shall be true and correct as of such earlier
date), and no Default or Event of Default has occurred and is continuing on and
as of the First Amendment Effective Date or will result from this Amendment
becoming effective in accordance with its terms.
(f) The proceeds of the Term Loan will be used to satisfy, in
full, all of the outstanding Indebtedness and other obligations due IBM Credit
Corporation from Borrower.
7. Continued Effectiveness of the Loan and Security Agreement
and Loan Documents. Borrower hereby (i) confirms and agrees that each Loan
Document to which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects except that on and
after the First Amendment Effective Date of this Amendment all references in any
such Loan Document to "the Loan and Security Agreement", the "Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the Loan
and Security Agreement shall mean the Loan and Security Agreement as amended by
this Amendment, (ii) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to Foothill, or to grant a security
interest in or Lien on, any collateral as security for the obligations of
Borrower from time to time existing in respect of the Loan and Security
Agreement and the Loan Documents, such pledge, assignment and/or grant of the
security interest or Lien is hereby ratified and confirmed in all respects, and
(iii) confirms that Foothill is authorized, at its option, without prior notice
to Borrower, to charge any fees payable by Borrower pursuant to Section 8(d) of
this Amendment to Borrower's Loan Account.
8. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) Borrower will pay on demand all reasonable fees, costs and
expenses of Foothill in connection with the preparation, execution and delivery
of this Amendment including, without limitation, reasonable fees disbursements
and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to Foothill.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed and delivered as of the date set forth on the
first page hereof.
DATA SYSTEMS NETWORK CORPORATION,
a Michigan corporation
By: Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President, Interim Chief
Financial Officer
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
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Name:
Title:
