EXHIBIT 10.05
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AMENDMENT AND WAIVER AGREEMENT
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AMENDMENT AND WAIVER AGREEMENT (this "AMENDMENT AGREEMENT") dated as of
June 12, 2000 by and between XXX.xxx, Inc. (the "BORROWER") and Fleet National
Bank (the "BANK"), amending a certain Credit Agreement by and between the
Borrower and the Bank dated as of May 12, 1999 (the "CREDIT AGREEMENT").
W I T N E S S E T H
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WHEREAS, pursuant to the terms of the Credit Agreement, the Bank has
made loans to the Borrower; and
WHEREAS, the Borrower has requested that the Bank waive certain Events
of Defaults which exist under the Credit Agreement and amend certain terms and
conditions of the Credit Agreement; and
WHEREAS, the Bank is willing to waive such Events of Default and amend
certain terms and conditions of the Credit Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SS.1. DEFINITIONS. Capitalized terms used herein without definition
that are defined in the Credit Agreement shall have the same meanings herein as
therein.
SS.2. RATIFICATION OF EXISTING AGREEMENTS. All of the Borrower's
obligations and liabilities to the Bank as evidenced by or otherwise arising
under the Credit Agreement, the Note and the other Loan Documents, except as
otherwise expressly modified in this Amendment Agreement upon the terms set
forth herein, are, by the Borrower's execution of this Amendment Agreement,
ratified and confirmed in all respects. In addition, by the Borrower's execution
of this Amendment Agreement, the Borrower represents and warrants that no
counterclaim, right of set-off or defense of any kind exists or is outstanding
with respect to such obligations and liabilities.
SS.3. REPRESENTATIONS AND WARRANTIES; ACKNOWLEDGMENT. The Borrower
hereby represents and warrants to the Bank as follows:
(a) All of the representations and warranties made by the
Borrower in the Credit Agreement, the Note and the other Loan Documents
are true and correct on the date hereof as if made on and as of the
date hereof, except to the extent that (i) such representations are
updated as set forth on
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Schedule A attached hereto or (ii) any of such representations and
warranties expressly relate by their terms to a prior date and for
matters previously disclosed to the Bank in writing; and
(b) After giving effect to the transactions contemplated
hereby, no Event of Default under and as defined in any of the Loan
Documents has occurred and is continuing on the date hereof.
SS.4. CONDITIONS PRECEDENT. The effectiveness of the amendments
contemplated hereby shall be subject to the satisfaction on or before the date
hereof of each of the following conditions precedent:
(a) Representations and Warranties. All of the representations
and warranties made by the Borrower herein, whether directly or
incorporated by reference, shall be true and correct on the date
hereof, except as provided in ss.3 hereof.
(b) Performance; No Event of Default. The Borrower shall have
performed and complied in all material respects with all terms and
conditions herein required to be performed or complied with by it prior
to or at the time hereof, and, after giving effect to the transactions
contemplated hereby, there shall exist no Event of Default or condition
which, with either or both the giving of notice of the lapse of time,
would result in an Event of Default upon the execution and delivery of
this Amendment Agreement.
(c) Corporate Action. All requisite corporate action necessary
for the valid execution, delivery and performance by the Borrower of
this Amendment Agreement and all other instruments and documents
delivered by the Borrower in connection therewith shall have been duly
and effectively taken.
(d) Delivery. The parties hereto shall have executed and
delivered this Amendment Agreement, in form and substance satisfactory
to the Bank.
(e) Fees and Expenses. The Borrower shall have paid to the
Bank all reasonable fees and expenses incurred by the Bank in
connection with this Amendment Agreement, the Credit Agreement and the
other Loan Documents. In addition the Borrower shall have paid one-half
of all reasonable fees and expenses incurred by the Bank in connection
with the other potential financing arrangements discussed between the
Borrower and the Bank on or prior to the date hereof, including,
without limitation, the fees and expenses set forth in that certain
xxxx from Bank's counsel dated June 26, 2000 previously delivered to
Borrower (the "June Xxxx").
SS.5. AMENDMENTS TO THE CREDIT AGREEMENT.
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5.1. AMENDMENT TO SS.1. Section 1 of the Credit Agreement is
hereby amended by adding the following new definition of "Qualified Financial
Institution" to such Section in the proper alphabetical order to read as
follows:
"Qualified Financial Institution: Either (i) a licensed broker/dealer
located in the United States having net capital of not less than $1,000,000,000
or (ii) a bank or trust company organized under the laws of the United States or
any state thereof having net capital of not less than $1,000,000,000."
5.2. AMENDMENT TOSS.7.1(F). Section 7.1(f) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(f) maintain (i) Borrower's primary bank operating accounts with the
Bank, (ii) its Subsidiaries' primary bank operating accounts at the locations
listed on Schedule 7.1(f) hereto, and (iii) all other operating accounts solely
at any office located in the United States of any Qualified Financial
Institution; and"
5.3. AMENDMENT TOSS.7.2(C). Section 7.2(c) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(c) make any Investments other than Investments in (i) marketable
obligations of the United States maturing within one (1) year, (ii) certificates
of deposit, bankers' acceptances and time and demand deposits of United States
banks having total assets in excess of $1,000,000,000, (iii) securities commonly
known as "commercial paper" issued by a corporation organized and existing under
the laws of the United States of America or any state thereof that at the time
of purchase have been rated and the ratings for which are not less than "P1" if
rated by Xxxxx'x Investors Service, Inc., and not less than "A1" if rated by
Standard and Poor's Rating Group, (iv) Investments in money market mutual funds
which invest substantially all of their assets in assets satisfying the
requirements of clauses (i), (ii) or (iii) of this subsection (c) or in
repurchase agent agreements secured by any one or more of the Investments in
which the Borrower is permitted to invest pursuant to clauses (i), (ii) or (iii)
of this subsection (c); (v) Subsidiaries, (vi) other Investments existing on the
date hereof and listed on Schedule 7.2(c) hereto or similar investments
maintained with the Bank, (vii) 78,370 shares of the Series F Preferred Stock of
LiveVault Corporation purchased on May 22, 2000 for an aggregate purchase price
of $500,000.60 or (viii) such other Investments as the Bank may from time to
time approve in writing;"
SS.6. WAIVERS. Subject to the satisfaction of the conditions set forth
herein, the Bank waives those Events of Default that have occurred under the
Credit Agreement as a result of the Borrower's failure on or before July 31,
2000 to comply with those sections of the Credit Agreement set forth on Schedule
1 attached hereto. The waiver set forth in this ss.6 shall be effective only for
those Events of Defaults contained in the existing Credit Agreement as specified
in the preceding sentence
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occurring on or before July 31, 2000 and such waiver shall not entitle the
Borrower to any future waiver in similar or other circumstances. Without
limiting the foregoing, upon the occurrence of an Event of Default after July
31, 2000, or if an Event of Default has occurred and is continuing on the date
hereof that is not set forth on Schedule 1, the Bank shall be free in its sole
and absolute discretion to accelerate the payment in full of the Borrower's
indebtedness to the Bank under the Credit Agreement and the other Loan
Documents, and may, if the Bank so elects, proceed to enforce any or all of the
Bank's rights under or in respect of the Credit Agreement and the other Loan
Documents and applicable law.
SS.7. NO WAIVER BY BANK. Except as otherwise expressly provided for
herein, nothing in this Amendment Agreement shall extend to or affect in any way
the Borrower's obligations or the Bank's rights and remedies arising under the
Credit Agreement or the other Loan Documents, and the Bank shall not be deemed
to have waived any or all of its remedies with respect to any Event of Default
(other than an Event of Default arising under the Credit Agreement as a result
of the Borrower's failure to comply with those sections of the Credit Agreement
set forth on Schedule 1 attached hereto and then only to the extent set forth in
ss.6 hereof) or event or condition which, with notice or the lapse of time, or
both would become an Event of Default and which upon the Borrower's execution
and delivery of this Amendment Agreement might otherwise exist or which might
hereafter occur.
SS.8. ADDITIONAL COVENANTS. Without any prejudice or impairment
whatsoever to any of the Bank's rights and remedies contained in the Credit
Agreement and the covenants contained therein, the Note or in any of the other
Loan Documents, the Borrower additionally covenants and agrees with the Bank as
follows:
(a) On or before August 20, 2000, the Borrower shall pay in
full all of the remaining fees and expenses due and owing under the
June Xxxx.
(b) The Borrower shall comply and continue to comply with all
of the terms, covenants and provisions contained in the Credit
Agreement, the Note and the other Loan Documents, except as such terms,
covenants and provisions are expressly modified by this Amendment
Agreement upon the terms set forth herein.
(c) The Borrower will provide to the Bank such financial
information as the Bank may reasonably request from time to time and at
the Borrower's expense.
(d) The Borrower shall at any time or from time to time
execute and deliver such further instruments, and take such further
action as the Bank may reasonably request, in each case further to
effect the purposes of this
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Amendment Agreement, the Credit Agreement, the Note and the other Loan
Documents.
The Borrower expressly acknowledges and agrees that any failure by the
Borrower to comply with the terms and conditions of this ss.8 or any other
provisions contained in this Amendment Agreement shall constitute an Event of
Default under the Credit Agreement.
SS.9. EXPENSES. The Borrower agrees to pay to the Bank upon demand (a)
an amount equal to any and all out-of-pocket costs or expenses (including
reasonable legal fees and disbursements and appraisal expenses) incurred or
sustained by the Bank in connection with the preparation of this Amendment
Agreement and related matters, including without limitation, any reasonable
legal fees in connection with any proposed amendments or financing arrangements
between the Borrower and the Bank and (b) from time to time any and all
out-of-pocket costs or expenses (including reasonable legal fees and
disbursements) hereafter incurred or sustained by the Bank in connection with
the administration of credit extended by the Bank to the Borrower or the
preservation of or enforcement of the Bank's rights under the Credit Agreement,
the Note or the other Loan Documents or in respect of any of the Borrower's
other obligations to the Bank.
SS.10. MISCELLANEOUS.
(a) This Amendment Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
(b) Except as otherwise expressly provided by this Amendment
Agreement, all of the respective terms, conditions and provisions of
the Credit Agreement shall remain the same. It is declared and agreed
by each of the parties hereto that the Credit Agreement, as amended
hereby, shall continue in full force and effect, and that this
Amendment Agreement and the Credit Agreement be read and construed as
one instrument, and all references in the Loan Documents to the Credit
Agreement shall hereafter refer to the Credit Agreement, as amended by
this Amendment Agreement
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed in its name and behalf by its duly authorized officer
as an instrument under seal as of the date first written above.
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. XxXxx
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Its: Vice President
XXX.XXX, INC.
By: /s/ X. Xxxxxxxx
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Its: Vice President
