EXHIBIT 10.17
SECOND LOAN MODIFICATION AGREEMENT
EFFECTIVE DATE: February 5, 1998
PARTIES: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
successor by merger to Bank of America Nevada (hereinafter
collectively referred to herein as the "Bank"); and
LEC TECHNOLOGIES, INC., a Delaware corporation, formerly
known as Leasing Edge Corporation, formerly known as TJ
Systems Corporation (hereinafter referred to as "LEC")
and TJ COMPUTER SERVICES, INC., a New York corporation
(hereinafter referred to as "TJCS"). LEC and TJCS are
sometimes referred to hereinafter individually as the
"Borrower" and collectively as the "Borrowers".
A. Borrowers' business consists of acquiring new computer and
telecommunications equipment ("Leased Equipment"') for lease to
unaffiliated third parties ("Lessees"), creating equipment leases
("Equipment Leases") between Borrowers, as lessor, and such Lessees for the
Leased Equipment. From time to time, Borrowers will assign such Equipment
Leases ("Lease Assignments") to other unaffiliated third party investors
("Assignees") for negotiated monetary considerations ("Assignment Fees").
Pursuant to said Lease Assignments, Borrowers retain title to the Leased
Equipment and grants to said Assignee a security interest in said Leased
Equipment.
B. Bank and Borrowers were parties to that certain Business Loan Agreement
dated as of July 11, 1995, and subsequently modified on December 6, 1995,
December 11, 1995, March 10, 1996, July 1, 1996, and August 15, 1996
(collectively the "Original Loan Agreement"), which established a revolving
line of credit in the original maximum principal amount of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000.00) (the "RLC"). The
Original Loan Agreement was subsequently amended and restated by that
certain Amended and Restated Business Loan Agreement dated February 28,
1997, as amended by that certain Loan Modification Agreement dated July 24,
1997 (collectively the "Restated Agreement"). Pursuant to the items of the
Restated Agreement, the RLC was converted to a term loan (the "Loan").
Capitalized terms used herein without definition shall have the same
meanings given in the Restated Agreement.
C. In connection with the Loan, LEC and TJCS each executed a Security
Agreement dated July 11, 1995, in favor of Bank, granting to Bank
collateral defined therein (the "Security Agreement").
D. In connection with the Loan, LEC executed Uniform Commercial Code
Financing Statements on Form UCC- I dated July II, 1995, (a) filed in the
office of the Secretary of State of the State of Nevada on July 28, 1995,
as Filing No. 9510581, (b) filed in the office of the Secretary of State of
the State of New York on July 31, 1995, as Filing No. 154451, and (c)
recorded in the Official Records of Xxxxx County, Nevada on August 9, 1995,
in Book Xx. 000000, Xxxxxxxxxx Xx. 00000; and (ii) TJCS executed Uniform
Commercial Code Financing Statements on Form UCC-1 dated July 11, 1995, (a)
filed in the office of the Secretary of State of the State of Nevada on
July 28, 1995, as Filing No. 9510582, (b) filed in the office of the
Secretary of State of the State of New York on July 31, 1995, as Filing No.
154452, and (c) recorded in the Official Records of Xxxxx County, Nevada on
August 9, 1995, in Book Xx. 000000, Xxxxxxxxxx Xx. 00000 (collectively, the
"UCCs").
E. In connection with the Loan, Bank and IBM CREDIT CORPORATION ("IBM
Credit"') entered into that certain Intercreditor and Subordination
Agreement made as of July 20, 1995, whereby IBM Credit agreed to
subordinate certain of its security interests to the security interests of
Bank under the Loan.
F. All of the documents, certificates or agreements executed in
connection with the Loan, including, without limitation, those listed above
and those which evidence, guaranty, secure or modify the Loan, as any or
all of them may have been amended or modified to date, shall hereinafter be
collectively referred to as the "Existing Loan Documents". This Second
Modification Agreement (the "Modification"), all other documents executed
in connection with this Modification, and the Existing Loan Documents, as
modified hereby, are herein collectively referred to as the "Loan
Documents".
G. As of February 5, 1998, Borrowers were indebted to Bank under the
Existing Loan Documents in the principal amount of One Million Three
Hundred Sixty-Six Thousand Three Hundred Sixty-Five and No/100 Dollars
($1,366,365.00), plus accrued and unpaid interest of Thirty-One Thousand
Nine Hundred Thirty-Seven and 53/100 Dollars ($31,937.53) (collectively,
the "Present Debt"), which Present Debt is due and payable to Bank without
offset, counterclaim or any defense of any kind or nature. This principal
balance is calculated without regard to any principal payments which are
required under this Agreement.
H. Borrowers have requested that Bank modify the Loan as set forth below.
Bank, although under no obligation to do so, is willing to so modify the
Loan, subject to the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENTS:
1. Reaffirmation/No Impairment. Borrowers reaffirm all of their
obligations under the Loan Documents and the Loan. Except as specifically
hereby amended, the Loan Documents shall each remain in full force and
effect. Borrowers' payment and performance obligations pursuant to the
Loan Documents, including all extensions, amendments, renewals or
replacements thereof, shall continue to be secured by the security
interests and liens arising under the Loan Documents.
2. Modifications. The Existing Loan Documents are hereby modified and
amended as described below. In the event of a conflict between terms of
the Existing Loan Documents and the terms of this Modification, this
Modification shall control:
2.1. Maturity Date. The maturity date of the Loan is hereby extended to
June 15, 1999. All sums owing under the Loan shall be due an payable no
later than this extended maturity date.
2.2 Interest Rate. The unpaid principal balance of the Loan outstanding
from time to time shall bear interest at the rates described below:
(a) Effective January 1, 1998 through June 15, 1998, interest shall
accrue on the unpaid principal balance of the Loan at an annual interest
rate equal to the Reference Rate in effect from time to time plus four
hundred (400) basis points;
(b) Effective June 16, 1998 through December 15, 1998, interest shall
accrue on the unpaid principal balance of the Loan at an annual interest
rate equal to the Reference Rate in effect from time to time plus five
hundred (500) basis points; and,
(c) Effective December 16, 1998 through June 15, 1999, interest shall
accrue on the unpaid principal balance of the Loan at an annual interest
rate equal to the Reference Rate in effect from time to time plus six
hundred (600) basis points.
2.3 Payment. Beginning January 15, 1998, installments of principal, each
in the amount specified below for the due date specified below, shall be
due and payable on the 15th day of each month, plus interest accrued
through the last day of the immediately preceding month at the applicable
Interest Rate in effect pursuant to Section 2.2 of this Modification. The
principal payment schedules listed below do not include the principal
reductions required under Section 8.24 of the Restated Agreement.
Date Due Principal Payment
--------------------------------------- --------------------
January 15, 1998 through June 15, 1998 $ 45,546.00
July 15, 1998 through December 15, 1998 $ 72,873.00
January 15, 1999 through May 15, 1999 $109,309.00
June 15, 1999 all remaining unpaid
principal, accrued and
unpaid interest, and
any unpaid fees and
expenses
Any principal payments made to Bank pursuant to Section 8.24 of the
Restated Agreement will be in addition to the monthly principal payments
described above, and will not be credited towards any such monthly
payments.
2.4 Tangible Net Worth. Section 8.3 of the Restated Agreement is
amended as follows: Borrowers agree, until Bank is repaid in full to
maintain on a consolidated basis quarterly Tangible Net Worth equal to at
least the amounts specified below for the periods specified below:
Period Amount
---------------------------------------- -------------
December 31, 1997 through March 31, 1998 $3,750,000.00
June 30, 1998 $3,500,000.00
September 30, 1998 through December 31,
1998 $3,250,000.00
March 31, 1999 $3,000,000.00
"Tangible Net Worth" means the gross book value of the Borrowers' assets
(excluding goodwill, patents, trademarks, trade names, organizational
expense, treasury stock, unamortized debt discount and expense, deferred
research and development costs, deferred marketing expense and other like
intangibles) less total liabilities, including but not limited to accrued
and deferred income taxes, and any like reserves against assets.
2.5 Other Debts. Section 8.5 of the Restated Agreement is amended as
follows: Not to have outstanding or incur any direct or contingent debts
(other than those to Bank) or become liable for the debts of others without
Bank's written consent. "Debts" are defined as borrowing transactions
between Borrowers and third parties or capital investment transactions
financed by third parties. This does not prohibit:
(a) Acquiring goods, supplies or merchandise on normal trade credit.
(b) Endorsing negotiable instruments received in the usual course of
business.
(c) Obtaining surety bonds in the usual course of business.
(d) Debts and lease obligations for business purposes in existence as of
the date hereof ("Existing Debt"), and additional debts and lease
obligations for business purposes ("Additional Debts"); provided the total
of all Existing Debt plus Additional Debt does not exceed a total principal
amount of Two Million and No/100 Dollars ($2,000,000.00) outstanding at any
one time.
2.6 Additional Negative Covenants. Section 8.19(c) of the Agreement is
amended in its entirety to read as follows:
(c) transfer any of Borrowers' assets to, provide monetary assistance to,
invest in, finance or enter into any consolidation, merger, pool, joint
venture, syndicate or other combination. This does not prohibit:
1. The payment by Borrowers of expenses incurred by Borrower on behalf
of any of Borrowers affiliated entities (for example, the payment by
Borrowers of invoices for consolidated property and liability
insurance, etc.) provided that such expenses are allocated back to the
affiliated entity through appropriate intercompany charges.
2. The reimbursement of expenses incurred by any of Borrowers
affiliated entities on behalf of Borrowers provided that such
expenses are allocated back to Borrowers through appropriate
intercompany charges.
3. Conditions Precedent. Before this Agreement becomes effective and any
party becomes obligated under it, all of the following conditions shall
have been satisfied at Borrowers' sole cost and expense in a manner
acceptable to Bank in the exercise of Bank's sole judgment and discretion:
3.1 Receipt of Documents. Bank shall have received fully executed, and
where appropriate, acknowledged originals of the this Agreement
and any other documents Bank may reasonably require or request in
accordance with this Modification or the other Loan Documents, all
in such form as Bank may require in the exercise of Bank's sole
judgement and discretion.
3.2 Extension Fee. Bank shall have received a fully earned and
nonrefundable extension fee in the amount of Twenty Thousand Four Hundred
Ninety-Five and 48/100 Dollars ($20,495.48).
3.3 Reimbursement of Bank's Costs and Expenses. Bank shall have
received reimbursement, in immediately available funds, of all costs and
expenses incurred by Bank in connection with this Modification, including
legal fees, costs and expenses of Bank's counsel. Such costs and expenses
may include the allocated costs for services for Bank's in-house staffs,
such as legal and appraisal.
4. Representations, Warranties and Acknowledgements. Borrowers represent,
warrant and acknowledge to Bank as follows:
4.1 Recitals. The recitals set forth above are true, complete, accurate
and correct, and such recitals are incorporated herein by this reference.
4.2 No Default. No Event of Default has occurred and is continuing, and no
event has occurred and is continuing which, with notice or the passage of
time or both, would be an Event of Default.
4.3 Loan Documents. All representations and warranties made and
given by Borrowers in the Loan Documents are true, complete, accurate and
correct, as if given as of the date of this agreement.
4.4 Property. Borrowers lawfully possess and hold a 100% ownership
interest in all of the Collateral granted by Borrowers for the Loan, free
and clear of any defects, reservations of title or conditional sales
contracts, and also free and clear of any security interest or liens other
than those approved by Bank or those in favor of Bank.
4.5 Enforceable Loan Documents. The Loan Documents, including this
Agreement, to which Borrowers are a party are legal, valid and
binding agreements of Borrowers, enforceable in accordance with
their respective terms, and any instrument or agreement required
hereunder or thereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable.
4.6 Financial Information. All financial and other information that has
been or will be supplied to Bank is: (a) sufficiently complete to give Bank
accurate knowledge of Borrowers' financial condition; (b) in form and
content required by Bank and in accordance with Generally Accepted
Accounting Practices ("GAAP"); and (c) in compliance with all applicable
government regulations. No material adverse change has occurred in the
business assets, or financial condition of Borrowers since Borrowers last
supplied financial statements or information to Bank.
4.7 No Claims or Defenses. The Present Debt is due and payable to
Bank, and Borrowers have no claim, offset, counterclaim or defense
with respect to: (a) the payment of the Present Debt; (b) the payment of
any other sums due under the Loan Documents; (c) the performance of
Borrowers' obligations under the Loan Documents; or (d) any liability under
any of the Loan Documents.
4.8 No Breach by Bank. Bank (including all of its predecessors) has not
breached any duty to Borrowers in connection with the Loan, and Bank
(including all of its predecessors) has fully performed all obligations it
may have had or now has to Borrowers.
4.9 Interest and Other Charges. All interest or other fees or charges
which have been imposed, accrued or collected by Bank (including all of its
predecessors) under the Loan Documents or in connection with the Loan
through the date of this Modification, and the method of computing the
same, were and are proper and agreed to by Borrowers and were properly
computed and collected.
4.10 Claims, Disputes, Impairments. To the best of Borrowers' knowledge,
Borrowers have no pending litigation, tax claims, proceedings or disputes
that may adversely affect Borrowers' financial condition or impair
Borrowers' ability to perform under the Loan Documents.
4.11 Borrowing Entity. Borrowers are a corporation, which is duly
organized, validly existing and in good standing under the laws of the
State of Delaware (with respect to LEC Technologies, Inc.) and the State of
New York (with respect to TJ Computer Services, Inc.). There have been no
changes in the organization, composition, ownership, structure or formation
of documents of Borrowers since the inception of the Loans. In each state
in which Borrowers do business, it is properly licensed and in good
standing. This Modification, and any instrument of agreement required
hereunder are within Borrowers' powers, have been duly authorized, and do
not conflict with any of Borrowers' organizational papers.
5. No Waiver. By entering into this, Bank does not waive any previous or
existing default unknown to the Bank, or any default hereafter occurring,
or become obligated to waive any condition or obligation in any agreement
between or among any of the parties hereto.
6. No Future Obligations. Bank has no obligation to make any additional
loan or extension of credit to or for the benefit of Borrowers, and Bank
has no obligation to further extend the maturity date of any credit
extended to Borrowers.
7. No Third Party Beneficiaries. This agreement is not intended for, and
shall not be construed to be for, the benefit of any person not a signatory
thereto.
8. Release of Bank. In consideration of the agreements and of Bank set
forth in this Modification, Borrowers, and all of their respective heirs,
personal representatives, predecessors, successors and assigns
(individually and collectively, the "Releasors"), hereby fully release,
remise, and forever discharge Bank, the parent of Bank and all other
affiliates and predecessors of Bank, and all past and present officers,
directors, agents, employees, servants, partners, shareholders, attorneys
and managers of Bank, the parent of Bank, and all other affiliates, and
predecessors of Bank and all of their respective heirs, personal
representatives, predecessors, successors and assigns, for, from, and
against any and all claims, liens, demands, causes of action,
controversies, offsets, obligations, losses, damages and liabilities of
every kind and character whatsoever, including, without limitation, any
action, omission, misrepresentation or other basis of liability founded
either in tort or contract and the duties arising thereunder, that
the Releasors, or any one of more of them, has had in the past, or now has,
whether known or unknown, whether asserted or unasserted, by reason of any
matter, cause or thing set forth in, relating to or arising out of, or in
any way connected with or resulting from, the Loan or the Loan Documents.
9. Incorporation. This agreement shall form a part of each of the Loan
Documents, and all references to one of the Loan documents shall mean that
document as hereby modified. This Modification shall not prejudice any
rights or remedies of Bank under the Loan Documents.
10. Purpose and Effect of Bank's Approval. Bank's approval of any matter
in connection with the Loan shall be for the sole purpose of protecting
Bank's security and rights. No such approval shall result in a waiver of
any default of Borrowers or Guarantor. In no event shall Bank's approval
be a representation of any kind with regard to the matter being approved.
11. Integration. The Loan Documents, including this Modification,
constitute the entire agreement and final expression between the parties
with respect to the terms and conditions set forth in the Loan Documents,
including this Modification. No supplement, modification or amendment of
this Modification or the other Loan Documents shall be effective unless in
writing and signed by Bank and Borrowers.
12. Counterparts/Construction/Time of Essence. This Modification may be
executed in any number of counterparts, each of which, when so executed,
shall be deemed an original, but all of which shall constitute one and the
same agreement. Section headings and paragraph titles used in this
Modification are for reference only and shall not affect or limit the
interpretation of meaning of any provisions of this Modification. As used
in this Modification, the work "include(s)" means "include(s), without
limitations', and the word "including" means "including, but not limited
to". Time is of the essence of this Modification and the other Loan
Documents.
13. Governing Law/Rights in Event of Litigation/Invalidity. This
Modification shall be governed by and construed according to the laws of
the State of Arizona. Borrowers hereby submits to jurisdiction and venue
in Xxxxx County, Nevada, and agrees that any and all litigation or
arbitration proceeding shall be maintained in Xxxxx County, Nevada. In the
event of judicial proceedings, Borrowers agrees that all issues in such
judicial proceeding litigation (including defenses, cross-claims and
counter-claims) shall be resolved by a judge and not a jury and, therefore,
Borrowers waives their rights to a jury trial which it otherwise would have
had. If any court of competent jurisdiction determines any provision of
this Modification or any provision in any of the other Loan Documents to be
invalid, illegal or unenforceable, that portion shall be deemed severed
from the rest, which shall remain in full force and effect.
14. Attorneys' Fees. In any lawsuit or arbitration proceeding between
Bank and Borrowers, which relates to, arises out of, or involves in any way
this Modification or any of the other Loan Documents, if Bank prevails, in
whole or in part, in said action, Bank shall be entitled to recover all of
its attorneys' fees (including any allocated fees of in-house counsel) and
costs (including but not limited to "taxable costs" as defined by statute)
associated with such suit or arbitration.
15. Successors and Assigns. This Modification shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns; provided, however,
Borrowers may not transfer their rights under the Loan Documents without
the prior written consent of Bank. Bank may transfer its rights under the
Loan Documents to any successor in interest.
16. No Waiver/Cumulative Remedies/Survival. No failure to exercise or no
delay in exercising any right power or remedy hereunder or under any of the
Loan Documents shall impair any right, power or remedy that Bank may have,
nor shall such delay be construed to be a waiver of any of such rights,
powers or remedies. Bank shall not be deemed to have waived any right
power or remedy except in writing signed by an authorized officer of Bank
expressly stating that it is a waiver of same right, power or remedy. The
rights, powers and remedies of Bank under the Loan Documents are cumulative
and not exclusive of any rights, powers or remedies that Bank would
otherwise have, and may be pursued at any time and from time to time and in
such order as Bank shall determine in its sole discretion. The
representations, warranties, acknowledgments and agreements set forth
herein shall survive the date of this Modification.
17. Mutual Agreement. The parties hereto agree that the terms and
provisions of this Modification embody their mutual intent and that
such terms and provisions are not to be construed (the "Code') on or after
the date of this Modification, it is the intention of Borrowers and Bank
that the terms and conditions of this Modification with respect to
Borrowers shall be incorporated into a plan of reorganization under Section
1129 of Code (a"Plan"). Borrowers agrees that under any potential Plan
which may be filed in the future (i) this Modification shall represent a
necessary element of such Plan, (ii) Borrowers will not seek to after or
amend any of terms and conditions of this Modification, (iii) such terms
and conditions are necessary for Bank's adequate protection, and (iv) such
terms and conditions will remain binding upon Borrowers in any such Plan.
If Borrowers falls to obtain confirmation of a plan of reorganization
incorporating the terms of this Modification within one hundred twenty
(120) days after a petition is filed, Bank is entitled to the automatic and
absolute lifting of any automatic stay as to the enforcement of any of the
Loan Documents against the collateral including specifically, but not
limited to, the stay imposed by Section 362 of the Code. Borrowers hereby
consents to the immediate lifting of any such automatic stay, and will not
contest any motion by Bank to lift such stay. Borrowers acknowledges that
Bank's interest in the collateral can be adequately protected only if a
plan of reorganization incorporating the terms of this Modification is
confirmed, within one hundred twenty (120) days after the petition
is filed. Bank reserves its right to seek all remedies available to
credits under the Code, including, but not limited to, the right to move
for relief from the automatic stay at any time.
19. Hazardous Waste Indemnification. Borrowers will indemnify, protect,
defend and hold harmless Bank for, from and against any loss or liability
directly or indirectly arising out of the use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal or
presence of a hazardous substance. This indemnity will apply whether the
hazardous substance is on, under or about Borrowers' property or operations
or property leased to Borrowers. This indemnity includes, but is not
limited to, attorneys' fees (including the reasonable estimate of the
allocated cost of in-house counsel and staff). This indemnity extends to
Bank, its parent, subsidiaries and all of their directors, officers,
employees, agents, successors, attorneys and assigns. The term "hazardous
substances" (Hazardous Substances") means any substance which is or becomes
designated as "hazardous' or "toxic" under any federal state or local law,
or any petroleum products, including crude oil and any produce derived
directly or indirectly from or any fraction or distillate of, crude oil.
This indemnity will survive repayment of the Borrowers' obligations to
Bank.
20. Arbitration.
20.1 Mandatory Arbitration. Unless expressly prohibited by law, any
controversy or claim between or among the parties, including those arising
out of or relating to this Modification or the Loan Documents and any claim
based on or arising from an alleged tort, shall at the request of any party
be determined by arbitration. The arbitration shall be conducted in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Modification, and under
the Commercial Rules of the AAA. The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrator(s). Judgment upon the arbitration award may be entered in any
court having jurisdiction. The institution and maintenance of an action
for judicial relief or pursuit of a provisional or ancillary remedy shall
not constitute a waiver of the right of any party, including the plaintiff,
to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
20.2 Provisional Remedies, Self-Help and Foreclosure. No provision of this
Section 20 shall limit the right of any party to this Modification to
exercise self-help remedies such as setoff, foreclosure against or sale of
any real or personal property or collateral or security, or obtaining
provisional or ancillary remedies from a court of competent jurisdiction
before, after, or during the pendency of any arbitration or other
proceeding. The exercise of a remedy does not waive the right of either
party to resort to arbitration or reference.
21. Cross Default. Any default under this Modification or an Event of
Default under any of the Loan Documents shall be an Event of Default under
each and every of the other Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Modification to be
on the does set forth below to be effective as of the day and year set
forth above.
"BANK"
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Executed: February 13, 1998 By: /s/ Xxxx X. Xxxxxxxxx
----------------- -------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
"BORROWERS"
LEC TECHNOLOGIES, INC., a
Delaware corporation
Executed: February 12, 1998 By: /s/ Xxxxxxx X. Xxxxxxx
----------------- -------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
TJ Computer Services, Inc.,
a New York corporation
Executed: February 12, 1998 By: /s/ Xxxxxxx X. Xxxxxxx
----------------- -------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
