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EXHIBIT 10.30
Execution Copy
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of March 12, 1997, but effective as of January 1, 1997, by and among PNI
SYSTEMS, LLC, a Georgia limited liability company (the "Company"), PREFERRED
NETWORKS, INC., a Delaware corporation (the "Parent", the Parent, together with
the Company, the "Borrowers"), and NATIONSBANK, N.A. (SOUTH) (the "Lender").
WHEREAS, the Borrowers and the Lender entered into that certain Credit
Agreement dated as of August 8, 1996 (the "Credit Agreement"); and
WHEREAS, the Borrowers and the Lender desire to amend certain
provisions of the Credit Agreement on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties
hereto agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by deleting subsection (I) of
Section 6.12 in its entirety and substituting in its place the following:
(1) Opinions of Counsel. (i) An opinion of counsel to the
Loan Parties regarding (A) the due organization of each such New
Subsidiary; (B) the corporate authority of any New Subsidiary or other
Loan Party delivering a Loan Document pursuant to this Section; (C)
the execution, delivery and enforceability of such Loan Documents; (D)
noncontravention of Applicable Law by such Acquisition or by the
execution, delivery and performance by such New Subsidiary and such
Loan Parties of such Loan Documents; (E) validity and perfection of
any security interests granted under any Security Document delivered
under this Section and (F) such other matters as the Lender or its
counsel may reasonably request and (ii) a letter from legal counsel to
the selling parties in such Acquisition allowing the Lender to rely on
the legal opinion of such counsel delivered in connection with such
Acquisition.
(b) The Credit Agreement is amended by deleting Section 8.1 in its
entirety and substituting in its place the following:
The Parent and its Subsidiaries must at all times hold on a
consolidated basis cash and Cash Equivalents in an aggregate amount
greater than or equal to (a) $600,000 for the period commencing
January 1, 1997 through and including May 28, 1997 and (b) at all
times after May 28, 1997, the projected consolidated Debt Service of
the Parent and its Subsidiaries for the period commencing on the date
of determination through the Termination Date.
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Section 2. Conditions Precedent. The effectiveness of this Amendment
is subject to receipt by the Lender of each of the following, each in form
and substance satisfactory to the Lender:
(a) A counterpart of this Amendment duly executed by the Company, the
Parent and each Guarantor; and
(b) Such other documents, instruments and agreements as the
Lender may reasonably request.
Section 3. Representations. Each of the Borrowers represents and
warrants to the Lender that:
(a) Authorization; No Conflict The execution and delivery by the
Borrowers of this Amendment and the performance by the Borrowers of this
Amendment and the Credit Agreement, as amended by this Amendment, in accordance
with their respective terms (a) have been duly authorized by all requisite
corporate and, to the extent required, stockholder action (or membership action
in the case of a limited liability company) on the part of each Borrower and
(b) will not (i) violate any provision of Applicable Law, or any order of any
Governmental Authority or any provision of the certificate in incorporation,
articles of organization or other comparable organizational instrument or
by-laws or operating agreement of either Borrower, (ii) violate, conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default or an event of default under any Material Contract to which
either Borrower is a party or by which each Borrower or any of its property is
or may be bound, or (iii) result in the creation or imposition of any Lien upon
any property or assets of the Borrowers.
(b) Enforceability. This Amendment has been duly executed and
delivered by a duly authorized officer of each Borrower and each of this
Amendment and the Credit Agreement, as amended by this Amendment, is a legal,
valid and binding obligation of the Borrowers enforceable against the Borrowers
in accordance with its respective terms except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws affecting generally the enforcement of creditors' rights and by
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
Section 4. Reaffirmation by Borrowers. Each Borrower hereby repeats
and reaffirms all representations and warranties made by such Borrower to the
Lender in the Credit Agreement and the other Loan Documents to which it is a
party on and as of the date hereof with the same force and effect as if such
representations and warranties were set forth in this Amendment in full.
Section 5. Certain References. Each reference to the Credit Agreement
in any of the Loan Documents shall be deemed to be a reference to the Credit
Agreement as amended by this Amendment.
Section 6. Expenses. The Company shall reimburse the Lender upon
demand for all costs and expenses (including attorneys' fees) incurred by the
Lender in connection with the preparation, negotiation and execution of this
Amendment and the other agreements and documents executed and delivered in
connection herewith.
Section 7. Benefits. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
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Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 9. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents remain in full
force and effect. The amendments contained herein shall be deemed to have
prospective application only, unless otherwise specifically stated herein.
Section 10. Counterparts. This Agreement may be executed in any number
of counterparts, each of which need not contain the signature of more than one
party and all of which taken together shall constitute one and the same
original instrument.
Section 11. Definitions. All capitalized terms not otherwise defined
herein are used herein with the respective definitions given them in the Credit
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Credit Agreement to be executed as of the date first above
written.
THE PARENT:
PREFERRED NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President
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THE COMPANY:
PNI SYSTEMS, LLC
By: Preferred Networks, Inc., its Manager
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: CEO of Preferred Networks, Inc.
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THE LENDER:
NATIONSBANK, N.A. (SOUTH)
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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