EXHIBIT 10.28
ALPHANET SOLUTIONS, INC.
SECOND AMENDMENT TO AND REAFFIRMATION OF LOAN DOCUMENTS
SECOND AMENDMENT TO AND REAFFIRMATION OF LOAN DOCUMENTS (this "Second
Amendment") made as of this 28th day of September, 1999 by and among ALPHANET
SOLUTIONS, INC., a New Jersey corporation (the "Company"), THE LEARNINGNET, INC.
f/k/a NETTEMPS, INC., a New Jersey corporation (the "Guarantor") and FIRST UNION
NATIONAL BANK, a national banking institution (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank has agreed to make credit available to the Company on
a revolving basis in the principal amount of up to $15,000,000 (the "Loan"),
pursuant to the terms and conditions of a certain Loan and Security Agreement,
dated June 30, 1997, as amended (as so amended and as amended and reaffirmed by
this Second Amendment, the "Loan Agreement"; all capitalized terms used herein
and not defined shall have the meanings ascribed to them therein); and
WHEREAS, the Loan is evidenced by a certain revolving note of the
Company dated September 30, 1998 (the "Exiting Revolving Note"); and
WHEREAS, as collateral security for its obligations under the Loan
Agreement and the Existing Revolving Note, the Company granted to the Bank liens
and security interests in the Collateral described in the Loan Agreement; and
WHEREAS, the repayment and performance obligations of the Company under
the Loan Agreement and the Existing Revolving Note were guaranteed by the
Guarantor under the Guaranty; and
WHEREAS, as collateral security for its obligations under the Loan
Agreement and the Guaranty, the Guarantor granted to the Bank liens and security
interests in the Collateral described in the Loan Agreement; and
WHEREAS, the Bank, the Company and the Guarantor have agreed that (a)
the Loan Agreement should be amended, among other things, to: (i) extend the
Maturity Date to December 31, 1999; and (ii) amend certain of the definitions
set forth therein; and (b) the other Loan Documents shall be reaffirmed and
amended to include the amendments set forth in the Loan Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, the Bank, the Company and the Guarantor, do hereby agree as
follows:
1. By executing this Second Amendment, each of the Company and the
Guarantor confirms and acknowledges that it has no defenses, offsets or
counterclaims against any of its obligations to the Bank under the Loan
Documents and that all amounts outstanding, if any, under the Existing
Revolving Note and the other Loan Documents are owing to the Bank
without defense, off-set or counterclaim.
2. A new Section 1.35B to the Loan Agreement is hereby added as
follows:
"Second Amendment" means the Second Amendment to and Reaffirmation of
Loan Documents, dated as of September 28, 1999, by and among the Company, the
Guarantor and the Bank.
3. Section 1.60 of the Loan Agreement is hereby amended to read as
follows:
"Maturity Date" means December 31, 1999.
4. Section 1.72 of the Loan Agreement is hereby amended to read as
follows:
"Revolving Note" means that certain Revolving Note dated September
28, 1999 issued by Borrower evidencing the Loan and any revolving note replacing
such note."
5. The Company shall execute a new Revolving Note dated the date hereof
which shall supersede and replace (but not represent a repayment or
novation of) the Existing Revolving Note. The Revolving Note dated the
date hereof shall be the "Revolving Note" for all purposes of the Loan
Agreement and the other Loan Documents.
6. By executing this Second Amendment, the Company and the Guarantor
confirm and acknowledge that (i) the representations and warranties
contained in Article V of the Loan Agreement (pertaining to each of
them) are correct as of the date hereof, (ii) the Company and the
Guarantor are in compliance with all covenants contained in the Loan
Agreement (except as otherwise agreed to by the Bank in writing) and
all other Loan Documents, and (iii) no Event of Default, or an event
which with the giving of notice or passage of time or both would
constitute an Event of Default, has occurred and is continuing.
7. All references to the "Agreement" or "this Agreement" in the Loan
Agreement shall mean the Loan Agreement, as amended and reaffirmed by
this Second Amendment; all references to the "Guaranty" in the Loan
Agreement shall be deemed to mean the Guaranty, as amended and
reaffirmed by this Second Amendment; and all references to the "Loan
Documents" shall mean and include the Loan Documents, as amended and
reaffirmed by this Second Amendment, as well as the Revolving Note (as
defined in the Loan Agreement, as amended by this Second Amendment).
All references to the "Obligations" in the Loan Agreement shall mean
and include the obligations of the Company and the Guarantor to the
Bank pursuant to the Loan Documents, as amended and reaffirmed pursuant
to this Second Amendment, including, but not limited to the Revolving
Note (as defined in the Loan Agreement, as amended by this Second
Amendment).
8. By executing this Second Amendment, the parties hereto confirm the
continued accuracy of all Schedules and Exhibits attached to and made a
part of the Loan Agreement and the other Loan Documents. If any such
Schedule or Exhibit is no longer fully accurate or needs updating, such
revised or updated Schedule or Exhibit shall be delivered to the Bank
as a condition precedent to the effectiveness of this Second Amendment
and shall be deemed to replace the prior Schedule or Exhibit for all
purposes of the Loan Agreement or such other Loan Document.
9. The Guaranty, effective the date hereof, is hereby amended to
provide that the term "Obligations" therein shall mean and include the
obligations of the Company to the Bank under the Loan Agreement and the
other Loan Documents, as each is amended and reaffirmed by this Second
Amendment, and all references to the "Loan Agreement" and the "Loan
Documents" in the Guaranty shall mean and include such agreements, as
amended and reaffirmed by, or delivered pursuant to, this Second
Amendment. By executing this Second Amendment, the Guarantor reaffirms
and acknowledges the validity of the Guaranty as of the date hereof and
confirms that it guarantees unconditionally the obligations of the
Company under the Revolving Note (as defined in the Loan Agreement, as
amended and reaffirmed by this Second Amendment) and the other Loan
Documents, as amended and reaffirmed by this Second Amendment.
10. By executing this Second Amendment, each of the Company and the
Guarantor confirms the security interests previously granted to the
Bank in and to the Collateral described in the Loan Agreement as
security for their obligations under the Loan Documents (as defined in
the Loan Agreement as amended by this Second Amendment), and each of
the Company and the Guarantor hereby grants to the Bank a security
interest in the Collateral described in the Loan Agreement to secure
the repayment of their Obligations under the Revolving Note (as defined
in the Loan Agreement as amended by this Second Amendment) and Guaranty
(as defined in the Loan Agreement as amended by this Second Amendment),
as applicable, and the other Loan Documents, as amended and reaffirmed
by this Second Amendment.
11. As conditions precedent to the effectiveness of this Second
Amendment, the following shall be delivered to the Bank by the Company
and/or the Guarantor:
(a) This Second Amendment, duly executed by all parties hereto;
(b) The Revolving Note, duly executed by the Company;
(c) The Certification (as to jurisdiction of execution);
(d) A corporate resolution, incumbency certificate, and such other
documents as the Bank may reasonably request reflecting the corporate
authorization and approval of the transactions contemplated hereunder by the
Company and the Guarantor; and
(e) Such other documents as the Bank may reasonably request.
12. The Company and the Guarantor hereby covenant and agree to execute
any and all UCC-1 and/or UCC-3 financing statements in order to perfect
the Bank's security interest in the assets of the Guarantor, all in
form and substance satisfactory to Bank.
13. This Second Amendment is incorporated by reference into the Loan
Agreement and the other Loan Documents. Except as otherwise provided
herein, all other provisions of the Loan Agreement and the other Loan
Documents are hereby confirmed and ratified and shall remain in full
force and effect as of the date of this Second Amendment.
14. This Second Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument.
15. This Second Amendment shall be binding upon the parties hereto and
their heirs, executors, administrators, successors and/or assigns.
16. This Second Amendment shall be governed by, and construed in
accordance with, the laws of the State of New Jersey.
17. In the event any provision of this Second Amendment or any other
Loan Document executed and delivered in connection herewith shall be
held invalid or unenforceable by a court of competent jurisdiction,
such holdings shall not invalidate or render unenforceable any other
provision hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
ATTEST: ALPHANET SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- ------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: Secretary Title: Vice President, Treasurer and
Chief Financial Officer
ATTEST: THE LEARNINGNET, INC. f/k/a
NETTEMPS, INC.
By:/s/ Xxxx X. Xxxxx By: /s/ Xxxx Gang
--------------------------- --------------------------------
Name: Xxxx X. Xxxxx Name: Xxxx Gang
Title: Secretary Title: Chairman of the Board
