Exhibit 10.1
LAST OUT PARTICIPATION AGREEMENT
THIS LAST OUT PARTICIPATION AGREEMENT (the "Participation Agreement")
is made this 6th day of October, 2000, by and between Fleet Business Credit
Corporation (formerly known as Sanwa Business Credit Corporation), a Delaware
corporation having offices located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Lender"), and MCSI, Inc., a Maryland
corporation having offices at 0000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000
("Participant").
RECITALS
A. Lender has entered into certain secured financing arrangements
(collectively, the "Prepetition Loan Documents") with Intellisys Group, Inc.,
Proline Industries, Inc., Proline Video, Inc. and X. Xxxxxxxxxxxx Enterprises,
Inc. (collectively "Borrowers"). Lender has made and/or may hereafter make
advances to, and/or has incurred and may hereafter incur obligations on behalf
of, Borrowers.
B. Borrowers have advised Lender and Participant that they intend to
file voluntary petitions for relief under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for
the Central District of California (the "Court").
C. Borrowers have further advised Lender and Participant that Borrowers
intend to operate their businesses and manage their affairs as debtors in
possession pursuant to sections 1107 and 1108 of the Bankruptcy Code.
D. Borrowers have requested that Lender and Participant provide
Borrowers with additional financing to enable Borrowers to operate their
businesses and to pay their expenses prior to and during their Chapter 11 cases.
E. Contemporaneous with the execution of this Participation Agreement,
Lender and Borrower executed a Stipulation For Entry Of Order Authorizing Debtor
In Possession Financing And Modification Of The Automatic Stay (the
"Stipulation"). Upon the entry of an Order from the Court approving the
Stipulation, Lender may make advances to, and/or may incur obligations on behalf
of, Borrowers.
F. Participant desires to acquire from Lender, and Lender desires to
sell to Participant, an ongoing participation interest in Lender's Transactions
with Borrower of Five Million Dollars ($5,000,000) in aggregate for the
Participant, upon the terms and conditions set forth below.
G. Borrowers desire that Participant's purchase of a participation
interest increase the Availability under the Loan Agreement.
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Lender and Participant hereby agree as follows:
1. DEFINITIONS
Except as otherwise provided in this Participation Agreement
(including this Section 1), capitalized terms have the meanings set forth in the
defined Loan Agreement, the Stipulation and the order approving the Stipulation.
1.1 "Advances" - All loans, advances, guarantees, extensions of
credit or other financial accommodations made to or on behalf of Borrower
pursuant to any of the Agreements, and all other items (other than interest or
other compensation) chargeable to Borrowers pursuant to any of the Agreements;
provided, however, the Advances stemming from Participant's participation
interest in Lender's Transactions are to be used by Borrowers solely to purchase
inventory from Participant.
1.2 "Agreements" - The Loan and Security Agreement (the "Loan
Agreement"), and all related written agreements, instruments, financing
statements, or other documents entered into or to be entered into between Lender
and Borrowers (and/or other parties, including guarantors and/or third-party
providers of collateral) providing for credit to Borrowers in an aggregate
amount not to exceed at any one time the Credit Limit except to the extent of
Overadvances which are made in Lender's discretion, copies of which have been
delivered by Lender to Participant, and as they may hereafter from time to time
be amended, supplemented, restated, and/or renewed, including, without
limitation, the Prepetition Loan Documents, Uniform Commercial Code financing
statements, the Stipulation and the proposed Order approving the Stipulation,
all as finally approved by order of the Court (the "DIP Financing Order" and
collectively referred to with the foregoing documents as the "DIP Financing
Facility"). Notwithstanding the foregoing, Lender agrees not to make
Overadvances in excess of $50,000 without Participant's prior written consent
(which consent shall not be unreasonably withheld) except for Overadvances by
Lender for Lender's attorneys fees and costs.
1.3 "Collateral" - All "Collateral" as defined under the Loan
Agreement and the DIP Financing Facility and all property, security interests,
and/or guarantees otherwise received by Lender or Participant pursuant to the
Agreements or otherwise acquired by Lender or Participant in connection with the
Transactions.
1.4 "Collections" - All monies received by Lender from Borrowers or
from other sources (including guarantors) on account of the Obligations or as
proceeds of the Collateral, or as a result of the exercise of any right of
setoff by Lender or any of its affiliates.
1.5 "L/C" - Any letter of credit issued by Lender for the account
of Borrowers pursuant to the Agreements.
1.6 "L/C Guaranty" - Any guaranty issued by Lender pursuant to the
Agreements in favor of any issuer of a letter of credit for the account of
Borrowers.
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1.7 "Major Change" - Any amendment, modification or waiver of or
with respect to the Agreements or the Transactions other than those described in
section 4.1 hereof that (a) reduces any amount payable to Participant hereunder,
(b) releases or subordinates the priority of any lien of Lender on any material
portion of the Collateral except in accordance with the terms of the Agreements
or in accordance with any order of the Court approving the sale of any of the
Borrowers' assets, (c) has the effect of amending the term of this Participation
Agreement, (d) releases of any guarantor of the Advances, provided that this
Subsection shall not apply if Participant buys the assets of Borrowers or (e)
extends the maturity date of the Stipulation.
1.8 "Obligations" - All Advances and the amount of any issued but
undrawn L/Cs and L/C Guarantees.
1.9 "Overadvance" - Has the meaning set forth in the Loan
Agreement.
1.10 "Participant's Commitment" - The Participant's obligations to
Lender to purchase a share of the Obligations in the amount of Five Million
Dollars ($5,000,000) resulting from the sale of inventory to Borrowers by
Participant as described in Section 2 below.
1.11 "Participant's Investment" - The outstanding portion of the
Participant's Commitment.
1.12 "Participation Percentage" - The percentage obtained by
dividing the amount of the outstanding Loans charged to the Loan Account for
Borrowers' purchase of inventory from Participant by the sum of the Loan Account
plus the amount of all outstanding L/C's and/or L/C Guaranties.
1.13 "Transactions" - All actions taken and to be taken by Lender,
Borrower, and/or any other party in connection with the Agreements.
2. SALE OF PARTICIPATION Lender hereby sells to Participant, and
Participant hereby purchases and accepts from Lender, an undivided interest in
the Agreements, Transactions, Obligations, Collateral, and Collections equal to
its share of the Participant's Commitment and in accordance with the terms
hereof. Participant hereby represents that it has not relied upon nor will it in
the future rely on the credit judgment or analysis of Lender concerning the
Borrowers and has independently reached its own decisions, based upon its own
assessment and analysis of the financial condition and affairs of the Borrowers
as to whether to enter into this Participation Agreement. Participant further
agrees that, on a going forward basis, it will not rely on the credit judgment
or analysis of Lender concerning the Borrowers and will continue to make its own
decisions, based upon its own assessment and analysis of the financial condition
and affairs of the Borrowers. PARTICIPANT ACKNOWLEDGES AND HEREBY EXPRESSLY
AGREES THAT LENDER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO BORROWERS' FINANCIAL CONDITION, OR WITH
RESPECT TO THE VALIDITY, ENFORCEABILITY, COLLECTIBILITY, PRIORITY OR PERFECTION
OF THE AGREEMENTS, THE TRANSACTIONS, OR THE COLLATERAL, AND THAT PARTICIPANT IS
FULLY
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FAMILIAR WITH, AND HAS MADE ITS OWN INDEPENDENT EVALUATION AND DETERMINATION
THEREOF. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, LENDER SHALL HAVE NO
OBLIGATION TO PROVIDE NOTICE OF ANY KIND TO PARTICIPANTS.
Participant agrees to sell to Borrowers inventory as may be reasonably
requested by Borrowers up to the amount of Participant's Commitment. Each
shipment of inventory for Borrowers by Participant shall be deemed an Advance to
Borrowers in the invoice amount of the goods, not to exceed fair market price.
3. PROCEDURE
3.1 Lender will keep records of all Obligations and Collateral in
its possession, appropriately marked to show the interest of Participant
therein, and Participant or its designees may inspect or copy same at reasonable
times during normal business hours. Lender will, from time to time, furnish
Participant with copies of future Agreements, and with such additional
information as Lender may have and may deem appropriate to provide to
Participant (or that Participant may reasonably request) with respect to the
Agreements, the implementation and administration of the provisions thereof, the
Transactions, the Collateral, and/or the financial condition and operations of
Borrower; provided, however, that (i) Lender shall have no liability to
Participant for any damages, or otherwise, resulting from Lender's failure to
provide such copies of any such future Agreements and/or information; and (ii)
Lender stipulates and agrees that a failure by Lender to provide copies of such
future Agreements and/or information as required above shall entitle
Participant, as its sole and exclusive remedy for any failure of Lender to
comply with this section 3.1, to mandatory injunctive relief requiring that such
failure be remedied.
3.2 For the first thirty days from the date of each shipment of
inventory by Participant to Borrower, the parties agree that the Participant's
Commitment shall not earn any interest and Lender shall not charge Borrower
interest on the Participant's Investment after said thirty day period, interest
shall accrue on that portion of Participant's Investment which is over thirty
days at 11% per annum. Participant shall provide to Lender each month copies of
all purchase orders, invoices, proofs of delivery and such other documents as
Lender may reasonably request reflecting the sales and delivery of inventory by
Participant to Borrower.
3.3 All Collections will be applied to Borrower's account with
Lender at such time and in such manner as is provided in the Agreements. It is
intended that Participant's Commitment not exceed Five Million Dollars
($5,000,000).
3.4 Any repayment of Participant's Investment shall be payable only
upon termination or liquidation in accordance with Section 5 hereof, and only
after all of the Obligations then owed or to be owing to Lender (as that term is
defined in the Loan Agreement) have been paid in full. Participant shall not be
entitled to any payments based upon any float or any similar charges provided
under the Agreements, and Participant shall not share in: any fees or interest
or in any recovery by Lender of out-of-pocket expenses incurred by Lender and
reimbursable by Borrower.
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3.5 In the event that Lender is required, for any reason, to repay
Borrowers or any other person all or any portion of any payment which was
remitted to Participant pursuant to this Participation Agreement, including,
without limitation payment as a result of, or in settlement of an action or
claim asserted at any time by Borrowers or any of its stockholders or guarantors
or any receiver or trustee in bankruptcy, or by any other party against either
Lender or Participant caused by any alleged claim of usury, ultra xxxxx act or
invalidity, any alleged preferential or fraudulent transfer, or any other claim
in connection with the Transactions or the Collateral, Participant shall remit
to Lender its share based upon Participant's Participation Percentage of the
amount which is required to be so refunded, paid, paid in settlement or repaid,
and Participant's Investment shall be adjusted accordingly. Lender will promptly
provide Participant with notice of the assertion of any action or claim
described in the immediately preceding sentence and any settlement or compromise
thereof shall require the prior written approval of Participant (which approval
shall not be unreasonably withheld).
3.6 Lender shall not have, and does not assume, any liability to
Participant for the repayment of Participant's Investment or interest thereon,
provided however, that Lender is not relieved of its obligations under Sections
3.2 and 5 hereof.
3.7 Lender's costs and expenses of managing and servicing the
Transactions shall be repaid in accordance with the Loan Agreement prior to
repayment of Participant's Investment.
4. MANAGEMENT
4.1 All of the Obligations and other Transactions shall be made and
conducted in Lender's name, and all of the Collateral and Collections shall be
held by or on behalf of Lender in its sole name. Lender shall have the right to
administer the Agreements, to perform and enforce the terms thereof, to exercise
all privileges and rights exercisable or enforceable by Lender thereunder and to
manage any accounts of Borrowers maintained with Lender in connection therewith,
according to Lender's discretion and in the exercise of its normal business
judgment, it being specifically understood without limiting the generality of
the foregoing that Lender may, from time to time, make Overadvances to Borrower
but subject to the limitations in Section 1.2 hereof. Lender hereby expressly
appoints Participant as agent for the purpose of perfecting Lender's security
interest in any of the Collateral which may at any time come into the possession
of such Participant. Under no circumstances shall Participant take any action to
enforce payment or performance by the Borrower of any of the Obligations or to
enforce any liens securing the Obligations. Except as provided below with
respect to Major Changes, Lender shall have the continuing right to enter into
and agree to amendments, waivers, modifications and releases with respect to the
Agreements, the Transactions, and the Collateral. The foregoing notwithstanding,
Lender shall not agree to any Major Change without first obtaining the consent
of Participant (which consent shall not be unreasonably withheld). Lender shall
not be liable to Participant for any action taken or omitted or for any error in
judgment, except for its own bad faith or willful misconduct.
4.2 Lender shall exercise ordinary care in managing and servicing
the Obligations and other Transactions, and in making Collections in connection
therewith. To the extent of Participant's Participation Percentage, Lender is
and shall be Participant's agent, but
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Lender is not, and shall not under any circumstances be deemed to be, a
fiduciary for Participant in administering and servicing the Agreements or in
any other capacity. Nothing contained herein shall confer upon either Lender or
Participant any proprietary interest in, or subject either of them to, any
liability for or with respect to, the business, assets, profits, losses, or
obligations of the other.
4.3 If Participant or Lender sell, pledge, assign, sub-participate,
or otherwise transfer all or any part of its interest hereunder, this
Participation Agreement shall be binding in its entirety upon that third party.
5. TERMINATION/LIQUIDATION In the event that Borrowers are in default
under the Agreements, Lender may, in its sole discretion, declare a default, and
may, in its sole discretion take such action, including, without limitation
liquidation of the Collateral. In the event of such liquidation, or if at any
time the Agreements are terminated, until the Liabilities (as that term is
defined in the Loan Agreement) are paid in full, all Collections received shall
be applied: (a) first to the payment of expenses; (b) second to Lender in the
aggregate amount of compensation (i.e., all fees and interest) payable under the
Agreements; (c) third, to the unpaid balance of Lender's Advances pursuant to
the Agreements; (d) fourth, to a reserve to be held by Lender, an amount equal
to all outstanding L/C's and L/C Guaranties to be held by Lender (along with any
actual interest accruing thereon) until such time as all obligations under such
L/C's and/or L/C Guaranties have been satisfied or terminated; (e) fifth, to the
unpaid balance of Participant's Investment; and (f) sixth, in accordance with
applicable law.
6. RIGHT TO PURCHASE LENDER PRO-RATA SHARE.
6.1 If an Event of Default occurs, before taking any steps to
enforce its rights to liquidate the Collateral, under the D.I.P. Financing
Order , Lender shall endeavor to give three (3) business days prior written
notice for Participant to elect to purchase Lender's interest in the Obligations
for the total amount of Lender's pro-rata share of the Obligations at the face
amount thereof (the "Lender Payoff") provided that, in the event of such
election and payment of such amount within twenty-four(24) hours of Lender's
receipt of notice of such election, Lender shall not take any further steps to
enforce its rights under the Loan Agreement, except such steps as are reasonably
necessary for the protection of any of the Collateral. Failure of Lender to give
such notice shall not subject it to any liability or otherwise offset its rights
under this Agreement.
7. THE PARTICIPANTS AND PAYMENT.
7.1 In the event that any provisions of this Participation Agreement
shall be held by a court or other tribunal of competent jurisdiction to be
unenforceable, such provision will be enforced to the maximum extent permissible
and the remaining portions of this Participation Agreement shall remain in full
force and effect.
7.2 The Borrower is seeking, by entered Orders of the Court, the
approval of the Stipulation and the Asset Purchase Agreement between Borrowers
and Participant, both of which have been entered into simultaneously herewith.
Participant agrees to use his reasonable good faith efforts to cooperate with
Borrower's efforts to obtain any necessary
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court approval of such agreements and all other documents being entered into
between Participant and Borrower in connection therewith.
8. GENERAL
8.1 All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
hand-delivered or if sent by confirmed telefax, or on the date received by
registered or certified mail, postage prepaid, addressed to a party hereto at
the party's address as it appears below. Each party hereto may change the
address at which notice shall be given by written notice given in the above
manner. Except as otherwise expressly provided herein, the parties shall not
have an obligation to provide notice of any kind to the other.
PARTICIPANT:
MCSI, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx X. Xxxxxxx
With a copy to:
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
LENDER:
Fleet Business Credit Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Att: Xxxxxxxx Xxxxxxx & Xxxx X. Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxx_xxxxxxx@xxxxxxxxxxxx.xxx &
xxxx_xxxxxx@xxxxxxxxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
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Att: Xxxx X. Xxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx@xxxxxx.xxx
8.2 This Participation Agreement: (a) shall be binding upon and
inure to the benefit of the parties hereunder and their respective legal
representatives, successors, and permitted assigns; (b) shall be governed,
construed, and interpreted in all respects in accordance with the laws of the
State of California; and (c) may not be modified, amended, terminated, or
otherwise changed orally or by any course of dealing or in any manner except by
an agreement in writing signed by the duly authorized officer of the party to be
charged.
8.3 Each of the parties hereby expressly submits and consents in
advance to the jurisdiction of the Superior Court of the State of California in
the County of Los Angeles and to the jurisdiction of the United States District
Court for the Central District of California in any action or proceeding
commenced by the other in such court with reference to any claim or dispute
between the parties pertaining directly or indirectly to this Participation
Agreement or to any matter arising therefrom. Each of the parties hereby waives
the right to trial by jury in any such action or proceeding.
8.4 WAIVER OF SPECIAL DAMAGES. EXCEPT AS PROHIBITED BY LAW,
PARTICIPANT HEREBY WAIVES ANY RIGHTS WHICH IT MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THE AGREEMENTS, INCLUDING WITHOUT LIMITATION THIS PARTICIPATION
AGREEMENT, THE LOAN AGREEMENT AND ANY AMENDMENTS THEREOF, ANY SPECIAL,
EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES. PARTICIPANT AGREES
THAT DAMAGES FROM ANY BREACH BY LENDER MAY NOT EXCEED THE AMOUNT OUTSTANDING
HEREUNDER AND THEN ONLY TO THE EXTENT THOSE DAMAGES ARE A DIRECT RESULT OF THE
BREACH. PARTICIPANT HEREBY (A) CERTIFIES THAT NEITHER LENDER, NOR ANY AGENT,
REPRESENTATIVE, OR ATTORNEY THEREOF HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (B) ACKNOWLEDGES THAT, IN ENTERING INTO THIS PARTICIPATION
AGREEMENT, LENDER IS RELYING UPON, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION 8.4.
8.5 Except as permitted by Borrower, or otherwise required by
applicable law or regulation, including without limitation the Securities
Exchange Act of 1934, as amended, or by court order or the requirements of other
competent authority and except in connection with any legal proceeding to which
Lender and/or Participant are a party, Participant shall not disclose any
financial or other information of the Borrower received from Lender (except for
any information available to the public from any governmental office) to any
third party (other than its auditors, regulators, attorneys, affiliates, or
Lender) for a period of 5 years after the termination of the Loan Agreement.
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8.6 If any action at law or equity is brought to enforce or
interpret the provisions of this Participation Agreement, the prevailing party
shall be entitled to recover actual attorneys' fees, which may be determined by
the court in the same action or in a separate action brought for that purpose,
in addition to any other relief to which that party may be entitled.
8.7 No term or provision contained in this Participation Agreement,
and no other agreement between the parties hereto, is intended to be, or shall
it be construed to be, the formation of a partnership or joint venture between
Lender and Participant or between Participant.
8.8 It is understood and agreed that Lender and Participant, or any
affiliate of either thereof may, from time to time, lend money to or otherwise
generally engage in any business with the Borrower and any affiliate of Borrower
(subject to Section 4.1 above).
8.9 This Participation Agreement and the duties and obligations
contained herein shall be solely for the benefit of the parties hereto, and
their affiliates; no third party shall have any rights hereunder as a
third-party beneficiary or otherwise.
8.10 This Participation Agreement is the entire agreement and
understanding between the parties relating to the subject matter hereof (any
course of dealings or usage of the trade notwithstanding), and supersedes all
other agreements, oral and/or written hereto before made between the parties
with respect to the subject matter hereof including, without limitation,
previous agreements and/or amendments thereto. However, this Participation
Agreement shall not relieve any party hereto from making payments due and owing
under any other agreements or contract. Any amendment hereto must be in writing
and signed by an authorized representative of Lender and the Participant.
IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be executed in Los Angeles, California.
Dated: October ___, 2000 FLEET BUSINESS CREDIT CORPORATION.
By: /s/ XXXX X. XXXXXX
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Its: S.V.P.
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Dated: October ___, 2000 CMSI, INC.
By: /s/ XXX X. XXXXXXX
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Its: VP CFO
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