EXHIBIT 10.3
FOURTH AMENDMENT TO
AMENDED AND RESTATED PURCHASE & SALE AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED PURCHASE & SALE AGREEMENT
(herein called this "Amendment") made as of the 18 day of June, 2003, by
and among Performance Interconnect Corp., a Texas corporation. ("PI"),
Performance Interconnect Corp. of North Texas, Inc., a Texas corporation
("PINT"), North Texas PC Dynamics Inc., a Texas corporation ("NTPCD"; PI
PINT and NTPCD are sometimes collectively referred to herein as "Seller"),
Third Millenium Development Corp., a Texas corporation ("Third Millenium")
and Fidelity Funding Business Credit, Ltd. dba USA Funding, Ltd., a. Texas
limited partnership ("Purchaser"),
WITNESSETH:
WHEREAS, PI and I-Con Industries, Inc., with PI being the surviving
entity, and Purchaser entered into that certain Amended and Restated
Purchase & Sale Agreement dated as of March 31, 1998, as amended by a First
Amendment to Amended and Restated Purchase & Sale Agreement dated as of
December 23, 1998, a Second Amendment to Purchase & Sale Agreement dated as
of October 4, 2000, and a Third Amendment to Purchase & Sale Agreement dated
as of May 7, 2001 (as so amended, the "Original Agreement"), for the
purposes and consideration therein expressed, pursuant to which Purchaser
made certain financial accommodations to PI as therein provided; and
WHEREAS, pursuant to an Assumption, Ratification and Amendment
Agreement dated as of May 16, 2002, by and among PI, PINT, NTPCD and
Purchaser, PINT and NTPCD agreed that they were jointly and severally liable
with PI for the payment and performance of all obligations of each of PI,
PINT and NTPCD arising out of the Original Agreement and that they were
bound by the provisions of the Original Agreement; and
WHEREAS, Borrower and Purchaser desire to amend the Original Agreement
to provide for an additional advance to be made to Third Millenium under the
Term Loan;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the financial accommodations which may hereafter be made by
Purchaser to Seller and Third Millenium, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged., the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
--------------------------
S 1.1 Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used
in this Amendment.
S 1.2. Other Defined Terms. Unless the context otherwise requires,
the following terms when used in this Amendment shall have the meanings
assigned to them in this S 1.2.
"Amendment" means this Fourth Amendment to Amended and Restated
Purchase & Sale Agreement.
"Purchase Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendments to Original Agreement
--------------------------------
S 2.1. Term Loan. Section 24(a) of the Original Agreement is hereby
amended in its entirely to read as follows:
Purchaser made an advance to seller on or about October 4, 2000,
in an aggregate amount of not more than $750,000 (the "Initial
Advance"). Subject to the terms and conditions hereof, Purchaser
agrees to make an advance to Third Millenium Development Corp., a
Texas corporation ("Third Millenium") on or about __________ 2003,
in the amount of $125,000 (the "Third Millenium Advance") the Third
Millenium Advance and the initial Advance are sometimes herein
collectively called the "Term Loan"). Third Millenium will advance
all funds received under the Third Milleniurn Advance to PINT and
NTPCD, which advance will be evidenced by a promissory note payable
to Third Millenium and be subordinated to all obligations of PINT and
NTPCD to Purchaser. Seller and Third Millenium hereby agree to repay
to Purchaser the Term Loan, together with interest thereon, in the
manner provided herein. The principal owing hereunder in respect of
the Term Loan at any given time shall equal the aggregate initial
amount of the Term Loan minus all principal payments thereon received
by Purchaser hereunder. Amounts repaid in respect of the Term Loan
may not be reborrowed hereunder.
ARTICLE III.
Conditions of Effectiveness
---------------------------
S 3.1. Effective Date. This Amendment shall become effective as of
the date first above written, when and only when (i) Purchaser shall have
received, at Purchaser's office, a counterpart of this Amendment executed
and delivered by Seller, and (ii) Purchaser shall have additionally
received all of the following documents, each document (unless otherwise
indicated) being dated the date of receipt thereof by Purchaser, duly
authorized, executed, and delivered, and in form and substance satisfactory
to Purchaser:
(a) General Continuing Guaranty by Third Millennium Development
Corp. in favor of Purchaser;
(b) Environmental Indemnity Agreement by Third Millennium
Development Corp. in favor of Purchaser;
(c) Deed of Trust, Security Agreement and Fixture Filing by Third
Millennium Development Corp. for the benefit of Purchaser (the
"Deed of Trust");
(d) Certificate of Corporate Resolution, of Third Millemiium
Development Corp.;
(e) Certification, of Non-Foreign Status by Third Millennium
Development Corp.
(f) Assignment of Promissory Note by Third Millenium Development
in favor of Purchaser, together with the original promissory
note assigned by Third Millenium Development to Purchaser; and
(g) Mortgagee Title Insurance Policy showing Purchaser as the
insured, in the amount of $125,000 and written by a title
insurance underwriter satisfactory to Purchaser insuring
a valid first lien upon the property covered by the Deed
of Trust.
ARTICLE IV.
Representations and Warranties
------------------------------
S 4.1. Representations and Warranties of Seller. In order to induce
Purchaser to enter into this Amendment Seller represents and warrants to
Purchaser that:
(a) The representations and warranties contained in Section 5 of
the Original Agreement are true and correct at and as of the time of
the effectiveness hereof.
(b) Seller is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow and,
to perform its obligations under the Purchase Agreement. Seller has
duly taken all corporate action necessary to authorize the execution
and delivery of this Amendment and, to authorize the performance of the
obligations of Seller hereunder.
(c) The execution, and delivery by Seller of this Amendment, the
performance by Seller of its obligations hereunder and the consummation
of the transactions contemplated hereby do not and will not conflict
with any provision of law, statute, rule or regulation or of the
organizational documents of Seller, or of any material agreement,
judgment, license, order or permit applicable to or binding upon
Seller, or result in the creation of any lien, charge or encumbrance
upon any assets or properties of Seller. Except for those which have
been, duly obtained, no consent, approval, authorization or order of
any court or governmental authority or third party is required in
connection with the execution and delivery by Seller of this Amendment
or to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and
the Purchase Agreement will be a legal and binding instrument and
agreement of Seller, enforceable in accordance with its terms, except
as limited by bankruptcy, insolvency and similar laws applying to
creditors' rights generally and by principles of equity applying
to creditors' rights generally.
ARTICLE V.
Miscellaneous
-------------
S 5.1. Ratification of Agreements The Original Agreement as hereby
amended is hereby ratified and confirmed in all respects. The execution,
delivery and effectiveness of this Amendment shall not except as expressly
provided herein, operate as a waiver of any right, power or remedy of
Purchaser under the Purchase Agreement nor constitute a waiver of any
provision of the Purchase Agreement.
S 5.2. Survival of Agreements. All representations, warranties, covenants
and agreements of Seller herein, shall survive the execution and delivery
of this Amendment and the performance hereof. All, statements and,
agreements contained in any certificate or instrument delivered by Seller
hereunder or under the Purchase Agreement to Purchaser shall be deemed to
constitute representations and warranties by, or agreements and covenants
of, Seller under this Amendment and under the Purchase Agreement.
S 5.3. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas and any applicable laws
of the United States of America in all respects, including construction,
validity and performance.
S 5.4. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the
same Amendment.
THIS AMENDMENT, THE ORIGINAL AGREEMENT AND THE OTHER DOCUMENTS EXECUTED IN
CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the date flrst above
written.
PERFORMANCE INTERCONNECT CORP.
By: _________________________________
D. Xxxxxx Xxxxx
President
NORTH TEXAS PC DYNAMICS, INC.
By: _________________________________
D.Xxxxxx Xxxxx
President
PERFORMANCE INTERCONNECT CORP. OF
NORTH TEXAS, INC.
By: _________________________________
D.Xxxxxx Xxxxx
President
THIRD MILLENIUM DEVELOPMENT CORP.
By: _________________________________
D.Xxxxxx Xxxxx
President
FIDELITY FUNDING BUSINESS CREDIT, LTD.
dba USA Funding Ltd.
By: _________________________________
Xxxxx X. Xxxxxxxx
President FFBC, Inc. General Partner
