EXHIBIT 10.5
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of November 29, 2000, is made by and among XIT
CORPORATION, a New Jersey corporation, CXR TELCOM CORPORATION ("CXR" and
together with XIT, the "Borrowers"), and XXXXX FARGO BUSINESS CREDIT, INC., a
Minnesota corporation (the "Lender").
RECITALS
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The Borrowers and the Lender have entered into a Credit and Security
Agreement dated as of August 16, 2000, as amended (the "Credit Agreement").
Capitalized terms used in these recitals have the meanings given to them in the
Credit Agreement unless otherwise specified.
XIT desires to sell certain tangible and other assets of one of its
divisions, XCEL Etch-Tek (the "XET Division") to Xxxxx Xxxxxx, Tama-Xxx Xxxxxx
and Etch-Tek Electronics Corporation ("collectively referred to as "Buyer")
pursuant to the terms and conditions of that certain Asset Purchase Agreement
dated as of November 15, 2000, among XIT, MicroTel International, Inc. and Buyer
(the "Purchase Agreement") for the sale price of $310,000, with $260,000 in cash
due upon closing and a $50,000 note due in 1 year at the interest rate of 8% per
annum (the "Note").
The Borrowers have requested that Lender consent to the Purchase
Agreement, which the Lender is willing to do pursuant to the terms and
conditions set forth herein.
AMENDMENT
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. DEFINED TERMS. Capitalized terms used in this Amendment which are
defined in the Credit Agreement shall have the same meanings as defined therein,
unless otherwise defined herein.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) With respect to clause (i) of the definition of "Eligible
Accounts" in Section 1.1 of the Credit Agreement, those Accounts generated in
the XET Division that are unpaid 60 days or more after the invoice date shall
not be deemed Eligible Accounts. The age requirement for eligibility of Accounts
not generated in the XET Division shall continue to be less than 90 days after
invoice date, as set forth in clause (i).
(b) With respect to clause (xi) of the definition of "Eligible
Accounts" in Section 1.1 of the Credit Agreement, if 10% or more of the total
amount due under those Accounts generated in the XET Division that are owed by
an account debtor is ineligible under clauses (i), (ii) or (ix) of such
definition, then all of the Accounts generated in the XET Division that are owed
by such account debtor shall not be deemed Eligible Accounts. The cross-age
requirement for eligibility of Accounts not generated in the XET Division shall
continue to be less than 25%, as set forth in clause (xi).
3. CONSENT TO THE PURCHASE AGREEMENT. For the purposes of Section 7.6
of the Credit Agreement, Lender hereby consents to the Purchase Agreement and
the transactions contemplated thereby, provided that on the closing thereof, the
cash portion of the purchase price thereunder is remitted to Lender for
application to the Revolving Advances and the original of the Note is delivered
to Lender and duly endorsed to the order of Lender.
4. CONDITIONS PRECEDENT. This Amendment shall be effective when the
Lender shall have received an executed original hereof, together with each of
the following, each in substance and form acceptable to the Lender in its sole
discretion:
(a) The Acknowledgment and Agreement of Guarantors set forth
at the end of this Amendment, duly executed by each Guarantor; and
(b) Such other matters as the Lender may require.
5. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent and
warrant to the Lender as follows:
The Borrowers have all requisite power and authority to
execute this Amendment and to perform all of their obligations hereunder, and
this Amendment has been duly executed and delivered by the Borrowers and
constitutes the legal, valid and binding obligation of the Borrowers,
enforceable in accordance with its terms;
The execution, delivery and performance by the Borrowers of
this Amendment have been duly authorized by all necessary corporate action and
do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (ii) violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect, having applicability to
the Borrowers, or the articles of incorporation or by-laws of the Borrowers, or
(iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other agreement, lease or instrument to which any
Borrower is a party or by which it or its properties may be bound or affected;
and
All of the representations and warranties contained in Article
V of the Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such representations and
warranties relate solely to an earlier date.
6. REFERENCES. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended hereby,
and any and all references in the other Loan Documents to the Credit Agreement
shall be deemed to refer to the Credit Agreement as amended hereby.
7. NO WAIVER. The execution of this Amendment and acceptance of any
documents related hereto shall not be deemed to be a waiver of any Default or
Event of Default under the Credit Agreement or breach, default or event of
default under any Security Document or other document held by the Lender,
whether or not known to the Lender and whether or not existing on the date of
this Amendment.
8. RELEASE. Each Borrower, hereby, and each Guarantor by signing the
Acknowledgment and Agreement of Guarantors set forth below, absolutely and
unconditionally releases and forever discharges the Lender, and any and all
participants, parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together
with all of the present and former directors, officers, agents and employees of
any of the foregoing, from any and all claims, demands or causes of action of
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any kind, nature or description, whether arising in law or equity or upon
contract or tort or under any state or federal law or otherwise, which such
Borrower or such Guarantor has had, now has or has made claim to have against
any such person for or by reason of any act, omission, matter, cause or thing
whatsoever arising from the beginning of time to and including the date of this
Amendment, whether such claims, demands and causes of action are matured or
unmatured or known or unknown.
9. COSTS AND EXPENSES. Each Borrower hereby reaffirms its agreement
under the Credit Agreement to pay or reimburse the Lender on demand for all
costs and expenses incurred by the Lender in connection with the Credit
Agreement, the Security Documents and all other documents contemplated thereby,
including without limitation all reasonable fees and disbursements of legal
counsel. Without limiting the generality of the foregoing, each Borrower
specifically agrees to pay all fees and disbursements of counsel to the Lender
for the services performed by such counsel in connection with the preparation of
this Amendment and the documents and instruments incidental hereto. Each
Borrower hereby agrees that the Lender may, at any time from time to time in its
sole discretion and without further authorization by such Borrower, make a
Revolving Advance to such Borrower under the Credit Agreement, or apply the
proceeds of any such Revolving Advance, for the purpose of paying any such fees,
disbursements, costs and expenses and the fee required under Paragraph 5 hereof.
12. MISCELLANEOUS. This Amendment and the Acknowledgment and Agreement
of Guarantors may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original and all of which
counterparts, taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
be duly executed as of the date first written above.
XXXXX FARGO BUSINESS CREDIT, INC. CXR TELECOM CORPORATION
By: /S/ XXXXXXX X. XXXXXXX By: /S/ XXXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXXXX Name: XXXXXXXX X. XXXXX
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Title: ASST. VICE PRESIDENT Title: VP - CFO
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XET CORPORATION
By: /S/ XXXXXXXX X. XXXXX
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Name: XXXXXXXX X. XXXXX
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Title: VP - CFO
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ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS
The undersigned, each a guarantor of the indebtedness of CXR Telcom
Corporation and XIT Corporation (collectively, the "Borrowers") to Xxxxx Fargo
Business Credit, Inc. (the "Lender") pursuant to a separate Guaranty each dated
as of August 16, 2000 (each, a "Guaranty"), hereby (i) acknowledges receipt of
the foregoing Amendment; (ii) consents to the terms (including without
limitation the release set forth in paragraph 8 of the Amendment) and execution
thereof; (iii) reaffirms his or its obligations to the Lender pursuant to the
terms of his or its Guaranty; and (iv) acknowledges that the Lender may amend,
restate, extend, renew or otherwise modify the Credit Agreement and any
indebtedness or agreement of the Borrowers, or enter into any agreement or
extend additional or other credit accommodations, without notifying or obtaining
the consent of the undersigned and without impairing the liability of the
undersigned under his or its Guaranty for all of the Borrowers' present and
future indebtedness to the Lender.
/S/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX
MICROTEL INTERNATIONAL, INC.
By: /S/ XXXXXXXX X. XXXXX
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Name: Xxxxxxxx X. Xxxxx
Its: VP/CFO
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