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EXHIBIT 10.68
FIRST AMENDMENT TO CONDITIONS PRECEDENT RIDER
THIS FIRST AMENDMENT TO CONDITIONS PRECEDENT RIDER (hereinafter
referred to as this "Amendment") is made and entered into this 16th day of
April, 1996, by and between XXXXX MICROCOMPUTER PRODUCTS, INC. ("Borrower"),
a Georgia corporation, and THE CIT GROUP/CREDIT FINANCE, INC. ("Lender"), a
Delaware corporation.
RECITALS:
Borrower and Lender are parties to a certain Loan and Security
Agreement dated December 21, 1995 (as at any time amended, the "Loan
Agreement"), as supplemented by a certain Conditions Precedent Rider dated
December 21, 1995 (the "Conditions Rider") between Borrower and Lender.
The parties desire to amend the Conditions Rider as hereinafter set
forth.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound thereby, agree as follows:
1. DEFINITIONS. All capitalized terms contained in this Amendment,
unless otherwise defined herein, shall have the meanings ascribed to such terms
in the Loan Agreement.
2. AMENDMENT TO RIDER. The Conditions Rider is hereby amended as
follows:
(a) By adding to Section 1 the following definitions in appropriate
alphabetical sequence:
"Administrative Claim" shall mean the Application of Xxxx X. Xxxxxx,
Xxxx X. Xxxxxxx and Xxxxxxx Xxxxxxx for Allowance and Payment of
Administrative Expense Claim filed with the Court on March 26, 1996.
"Aid of Confirmation Motion" shall mean the Motion for Order in Aid
of Confirmation, Implementation and Consummation of Debtor's Plan of
Reorganization, Alternative Motion for Modification of Confirmed Plan
and Request for Expedited Hearing Thereon, filed with the Court by
Borrower on April 8, 1996.
"Certificate Regarding Investment Documents" shall mean the
Certificate Regarding Investment Documents to be executed by Borrower
on the Closing Date
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in favor of Lender in substantially the form delivered to Borrower and
pursuant to which Borrower shall confirm to Lender the consummation of
the Merger Agreement, the purchase of Preferred Stock by the Investors
and the execution and delivery of the Investors Shareholders' Agreement
and Voting Trust Agreements (the terms Preferred Stock, Investors,
Investors Shareholders' Agreement and Voting Trust Agreements shall
have the meanings ascribed to them in the Agreement and Plan of
Merger).
"Complaints for Revocation" shall mean the two Complaints for
Revocation of Order Confirming Plan of Reorganization and Request for
Emergency Hearing for Relief Pursuant to Bankruptcy Code ss.1144 filed
with the Court by Belgrave Investments Trust N.V. on April 3, 1996, and
by Xxxx X. Xxxxxx, Xxxx X. Xxxxxxx and Xxxxxxx Xxxxxxx on April 5,
1996.
"Domestic Subsidiary" shall mean those Subsidiaries organized
under the laws of a state of the United States.
"Emergency Motions" shall mean the two Emergency Motions for
Appointment of Chapter 11 Trustee or, in the Alternative, for
Conversion of the Case to Chapter 7; Request for Emergency Hearing; and
Supporting Memorandum filed with the Court by Belgrave Investments
Trust N.V. on April 3, 1996, and by Xxxx X. Xxxxxx, Xxxx X. Xxxxxxx and
Xxxxxxx Xxxxxxx on April 5, 1996.
"Limited Guaranty" shall mean the Limited Guaranty Agreement,
executed by Xxxxxx X. Xxxxx in favor of Lender, pursuant to which
Xxxxxx X. Xxxxx shall unconditionally guarantee the due and punctual
payment and performance of all of the Obligations, but with liability
thereunder limited to $5,000,000, and in the form attached hereto as
Exhibit Q or otherwise in form and substance satisfactory to Lender and
each Participant;
"Participants" shall mean Mellon Bank, N.A., Key Bank of New
York, Foothill Capital Corporation, Finova Capital Corporation, LaSalle
National Bank, and National Bank of Canada, and their respective
successors and assigns.
(b) By deleting from Section 1 the definitions of "Final
Order," "Merger Agreement" and "Subsidiary Guaranties" in their entireties and
by substituting the following definitions in lieu thereof:
"Final Order" shall mean an order of the Court, the
implementation, operation or effect of which has not been stayed and
with respect to which no appeal and no motion, complaint or other
proceeding for review, rehearing or revocation has been timely filed or
is pending, or if any such appeal, motion, complaint or other
proceeding is timely filed, the same has been dismissed with prejudice
or otherwise resolved in a manner that leaves unaffected such order and
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the time for further appeal, review or other consideration of such
order has expired.
"Merger Agreement" shall mean that certain Agreement and Plan
of Merger dated as of April 12, 1996, by and among Borrower, Xxxxxx X.
Xxxxx, Rinzai Limited,, Kaifa Technology (H.K.) Limited, Rolling Profit
Holdings, Ltd., Lao Hotel (H.K.) Limited, Saliendra Pte Limited, S.P.
Quek Investments Limited, and Financial Sub, Inc., a Georgia
corporation and wholly-owned subsidiary of Rinzai Limited, together
with all schedules and exhibits thereto and all amendments thereto
prior to the date hereof.
"Subsidiary Guaranties" shall mean the Guaranties to be
executed by each Subsidiary in favor of Lender, in substantially the
form attached hereto as Exhibit N-1 or in such other form as may be
requested by Lender in the case of a foreign Subsidiary (with such
revisions as may be necessary to conform to applicable law of the
jurisdiction of incorporation of each such Subsidiary) and N-2 or in
such other form as may be requested by Lender in the case of a domestic
Subsidiary, and by which each Subsidiary shall unconditionally
guarantee the due and punctual payment and performance of all of the
Obligations.
(c) By deleting paragraphs (a) and (b) of Section 2 in their
entireties and by substituting the following new paragraphs (a) and (b) in lieu
thereof:
(a) Lender shall have received assurances satisfactory to
it and each Participant (including assurances in the form of a
favorable written opinion addressed to Lender from Borrower's
bankruptcy counsel and in the form of the Certificate Regarding
Confirmed Plan of Reorganization to be executed and delivered on the
Closing Date in the form provided by Lender to Borrower) that (i) the
Confirmation Order has become a Final Order, except for the appeals
therefrom taken by Xxxxxx Xxxxxxx Xxxxx on March 18, 1996 and
Megahertz Corporation on March 18, 1996; (ii) Borrower is in
compliance with and able to perform all of the terms of the
Reorganization Plan and Confirmation Order; and (iii) Borrower is
authorized to proceed with consummation of the Reorganization Plan;
(b) Lender shall have received from Borrower and each
Subsidiary the duly executed Intellectual Property Security Documents
granting or perfecting security interests in favor of Lender in
patents, trademarks and copyrights of Borrower or any Subsidiary that
are registered in the United States, Canada or England;
(d) By deleting Section 2(d) in its entirety and by
substituting the following new Section 2(d) in lieu thereof:
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(d) Each of the Subsidiaries shall have executed and
delivered to Lender the Subsidiary Guaranties, Subsidiary Security
Agreements and the Service of Process Appointment, and, to the extent
requested by Lender, shall have joined with Borrower in executing and
delivering to Lender the Contribution Agreement;
(e) By adding the word "Domestic" before the word "Subsidiary"
in Section 2(h) and by deleting from Section 2(h) the words "and Foreign
Perfection Filings."
(f) By deleting Section 2(j) in its entirety and by
substituting the following new Section 2(j) in lieu thereof:
(j) Lender shall have received assurances satisfactory to
it and each Participant (including assurances in the form of favorable
written opinions addressed to Lender from counsel to Borrower) that
Borrower and the Domestic Subsidiaries each has all requisite power
and authority to execute and deliver each of the Transaction Documents
to be signed by it and has duly executed and delivered the Transaction
Documents through duly authorized officers, and that the Transaction
Documents create legal, valid and binding obligations of the
signatories thereto that are enforceable in accordance with their
respective terms;
(g) By deleting Section 2(l) in its entirety and by
substituting the following new Section 2(l) in lieu thereof:
(1) Lender shall have received assurances satisfactory to
it and each Participant (including assurances in the form of the
Certificate Regarding Investment Documents to be executed and
delivered on the Closing Date in the form provided by Lender to
Borrower) that (1) the "Investors" (as defined in the Merger
Agreement) have consented to the terms of the Loan Agreement and other
Transaction Documents to the extent that their consents are required
under the terms of the Merger Agreement and Investors Shareholders'
Agreement and (2) the transactions contemplated by the Merger
Documents have been, or concurrently with the funding of the initial
Revolving Loans under the Loan Agreement will be, fully consummated in
accordance with the terms thereof as in effect on the date hereof
(except to the extent of any waiver of closing conditions that the
parties thereto may elect to make), including the infusion into
Borrower of not less than $35,000,000, in cash, as a contribution to
the equity capital of Borrower;
(h) By deleting Section 2(x) in its entirety and by
substituting the following new Section 2(x) in lieu thereof:
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(x) The Closing Date occurs no later than the Funding
Date and the Funding Date occurs no later than the close of business on
April 22, 1996 (or such later date to which Lender may give its
consent, in its sole discretion).
(i) By adding the following new paragraphs (y) through
(cc) to Section 2:
(y) Lender shall have received assurances
satisfactory to it and each Participant (including assurances in the
form of a favorable written opinion addressed to Lender from Borrower's
bankruptcy counsel) that the Court has entered an order, in form and
substance satisfactory to Lender and each Participant, which grants the
relief requested by Borrower in the Aid of Confirmation Motion and
which authorizes Borrower to proceed with consummation of the
Reorganization Plan.
(z) Each Participant shall have confirmed in writing
to Lender its willingness to proceed with the purchase of its
participation interest in the Revolving Loans, Term Loans and
Accommodations pursuant to the participation agreement previously
entered into between Lender and such Participant;
(aa) Lender shall have received the Limited Guaranty
Agreement duly executed by Xxxxxx X. Xxxxx;
(bb) The Emergency Motions and Complaints for
Revocation shall have been dismissed by a written order of the Court
that is in form and substance satisfactory to Lender and each
Participant, or the Court by written order in form and substance
satisfactory to Lender and each Participant has otherwise expressly
authorized Borrower to consummate the Reorganization Plan
notwithstanding the pendency of the Emergency Motions and Complaints
for Revocation;
(cc) Lender shall have received assurances
satisfactory to it and each Participant that no order for a stay has
been entered by the Court with respect to the Confirmation Order, the
order approving the Aid of Confirmation Motion or any other order in
any way relating to the Confirmation Order;
(j) By deleting Section 3(b) in its entirety and by
substituting the following new Section 3(b) in lieu thereof:
(b) With respect to Term Loan A, Lender shall have
received assurances satisfactory to it and each Participant that 80% of
the appraised auction sale value of Eligible Equipment on the Closing
Date is not less than $2,027,000 (and if 80% of such value is
determined by Lender to be less than $2,027,000, then Term Loan A shall
be reduced by an amount equal to the difference).
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2. EXPENSES OF LENDER. Borrower agrees to pay, ON DEMAND, all costs and
expenses incurred by Lender in connection with the preparation, negotiation and
execution of this Amendment and any other Transaction Documents executed
pursuant hereto and any and all amendments, modifications, and supplements
thereto, including, without limitation, the costs and fees of Lender's legal
counsel and any taxes or expenses associated with or incurred in connection with
any instrument or agreement referred to herein or contemplated hereby.
3. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
reaffirms each of the Transaction Documents as modified by the Bringdown
Certificate executed by the President of Borrower, Xxxxxx X. Xxxxx, and dated
the date hereof (the "Bringdown Certificate"), and all of Borrower's covenants,
duties and liabilities thereunder.
4. ACKNOWLEDGEMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Loan Agreement and the other Transaction Documents executed
by Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrower); and the security interests and
liens granted by Borrower in favor of Lender are duly perfected, first priority
security interests and liens.
5. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Lender, to induce Lender to enter into this Amendment, that no Event of Default
exists on the date hereof; the execution, delivery and performance of this
Amendment have been duly authorized by all requisite corporate action on the
part of Borrower and this Amendment has been duly executed and delivered by
Borrower; and except as may have been disclosed in writing by Borrower to Lender
prior to the date hereof or in the Bringdown Certificate, all of the
representations and warranties made by Borrower in the Loan Agreement are true
and correct on and as of the date hereof.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
8. NO NOVATION, ETC.. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Conditions Rider or any of the other Transaction Documents, each of which
shall remain in full force and effect. This Amendment is not intended to be, nor
shall it be construed to create, a novation or accord and satisfaction, and the
Loan Agreement as herein modified shall continue in full force and effect.
Notwithstanding any prior mutual temporary disregard of any of the terms of any
of the Transaction Documents, the parties agree that the terms of each of the
Transaction Documents shall be strictly adhered to on and after the date hereof.
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9. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed
in any number of counterparts and by different parties to this Agreement on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
10. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS AMENDMENT,
BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER, AND ALL
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF LENDER, FROM
ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OR ACTIONS OF ANY
KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT, DISPUTED OR
UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT BORROWER NOW HAS OR
EVER HAD AGAINST LENDER ARISING UNDER OR IN CONNECTION WITH ANY OF THE
TRANSACTION DOCUMENTS OR OTHERWISE.
11. WAIVER OF JURY TRIAL. THE PARTIES HERETO EACH HEREBY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING
OUT OF OR RELATED TO THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the date first written above.
ATTEST: XXXXX MICROCOMPUTER PRODUCTS,
INC. ("Borrower")
By: /s/ Xxxxxx X. Xxxxx
------------------------- -----------------------------
Secretary XXXXXX X. XXXXX, President
[CORPORATE SEAL]
[Signatures continued on the following page]
Accepted and Agreed to:
THE CIT GROUP/CREDIT FINANCE,
INC. ("Lender")
By: /s/
-----------------------------
Title: Vice President
----------------------------
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CONSENT AND REAFFIRMATION
The undersigned guarantors of the Obligations of Borrower at any time
owing to Lender hereby (i) acknowledge receipt of a copy of the foregoing First
Amendment to Conditions Precedent Rider; (ii) consent to Borrower's execution
and delivery thereof and of the other documents, instruments or agreements
Borrower agrees to execute and deliver pursuant thereto; (iii) agree to be bound
thereby; and (iv) affirm that nothing contained therein shall modify in any
respect whatsoever its respective guaranty of the Obligations and reaffirm that
such guaranty is and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of such First Amendment to Conditions
Precedent Rider.
XXXXX MICROCOMPUTER PRODUCTS
(AUSTRALIA) PTY LIMITED
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
XXXXXX X. XXXXX, Director
XXXXX MICROCOMPUTER PRODUCTS
(CANADA) LIMITED
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
XXXXXX X. XXXXX, President
PRACTICAL PERIPHERALS (EUROPE)
LIMITED
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
XXXXXX X. XXXXX, Director
[Signatures continued on following page]
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XXXXX MICROCOMPUTER PRODUCTS
(FRANCE) S.A.R.L.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX,
Authorized Representative
XXXXX MICROCOMPUTER PRODUCTS
DE MEXICO S.A. DE C.V.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX, Sole
Administrator
XXXXX MICROCOMPUTER PRODUCTS
(SCANDINAVIA) APS
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX, Managing
Director
By: /s/ Xxxxxxx Xxxxx Xxxxxx
-----------------------------------
XXXXXXX XXXXX XXXXXX,
Managing Director
XXXXX MICROCOMPUTER PRODUCTS
(INTERNATIONAL) LIMITED
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX, President
ENTERPRISE TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
XXXX X. XXXXXX, President
[Signatures continued on following page]
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XXXXX GOVERNMENT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX, President
/s/ Xxxxxx X. Xxxxx (SEAL)
-----------------------------------
XXXXXX X. XXXXX
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