SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (the "Amendment")
is dated as of this _______ day of December, 1998 and is entered into among
Javelin Systems, Inc., CCI Group, Inc. and Posnet Computer, Inc. (jointly and
severally, "Borrower") and FINOVA Capital Corporation ("FINOVA"), in reference
to that certain Loan and Security Agreement among them (the "Loan Agreement")
dated June 8, 1998, as amended. Capitalized terms herein, unless otherwise
defined herein, shall have the meaning set forth in the Loan Agreement.
(a) FINOVA currently provides financial accommodations to Borrower
pursuant to the terms of the Loan Agreement.
(b) Borrower has requested that FINOVA amend the collateral reporting
requirements under the Loan Agreement and consent to the acquisition by Javelin
of RGB/Trinet Limited and Jade Communications Limited. FINOVA has consented to
Borrower's request on the terms and subject to the conditions set forth in this
Amendment.
Now therefore, the parties hereto do hereby agree as follows:
1. MODIFICATION TO REPORTING REQUIREMENTS AND RELATED MODIFICATIONS.
Clause (i) of Section 9. 1 (b) of the Loan Agreement is hereby amended in full
to read as follows:
"(i) FINOVA'S STANDARD FORM COLLATERAL AND LOAN REPORT, DAILY, AND
UPON FINOVA'S REQUEST, COPIES OF SALES JOURNALS, CASH RECEIPT
JOURNALS, AND DEPOSIT SLIPS; PROVIDED THAT JAVELIN AND POSNET SHALL
PROVIDE FINOVA'S STANDARD FORM COLLATERAL AND LOAN REPORT MONTHLY
(RATHER THAN DAILY), BY THE FIFTH DAY OF EACH MONTH FOR THE PRECEDING
MONTH, SO LONG AS EXCESS AVAILABILITY AT ALL TIMES EXCEEDS
$3,000,000;"
2. CONSENT TO ACQUISITION. FINOVA hereby consents to the acquisition
by Javelin of RGB/Trinet Limited and Jade Communications Limited, on the terms
disclosed to FINOVA prior to the date hereof. This consent is limited to the
specific transaction described herein and shall not relieve Borrower of its
obligation to comply in the future with Section 6.2.1 of the Loan Agreement.
3. REAFFIRMATION. Except as amended by terms herein, the Loan
Agreement and each of the other documents, instruments and agreements executed
and delivered in connection therewith remain in full force and effect in
accordance with their terms. Without limiting the generality of the foregoing,
each of Javelin, Posnet and CCI shall continue to comply with the terms of
Section 2.10(c) of the Loan Agreement. If there is any conflict between the
terms and conditions of the Loan Agreement and the terms and provisions of this
Amendment, the terms and provisions of this Amendment shall govern.
4. ADDITIONAL FEES. In consideration of this Amendment, Borrower
shall pay to FINOVA on the date hereof a fee of $1,500, which fee shall be
deemed fully earned upon
execution of this Amendment and shall be in addition to all other fees and
charges payable by Borrower to FINOVA.
5. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6. GOVERNING LAW. This Amendment shall be governed by and construed
according to the laws of the State of Arizona.
7. ATTORNEYS' FEES AND WAIVER OF JURY TRIAL. Borrower agrees to pay,
on demand, all attorneys' fees and costs incurred in connection with the
preparation, negotiation, documentation and execution of this Amendment. If any
legal action or proceeding shall be commenced at any time by any party to this
Amendment in connection with its interpretation, enforcement or otherwise
concerning its terms, the prevailing party in such action or proceeding shall be
entitled to reimbursement of its reasonable attorneys' fees and costs in
connection therewith, in addition to all other relief to which the prevailing
party may be entitled. Each of the parties hereto hereby waives any and all
rights to a trial by jury in any such action or proceeding.
FINOVA CAPITAL CORPORATION
By:
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Its:
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JAVELIN SYSTEMS, INC.
By: /s/ [ILLEGIBLE]
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Its: CHIEF FINANCIAL OFFICER
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CCI GROUP, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CHIEF FINANCIAL OFFICER
-----------------------------------------
POSNET COMPUTERS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CHIEF FINANCIAL OFFICER
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Each of the undersigned guarantors reaffirms the terms of its Secured Continuing
Corporate Guaranty dated June 8, 1998, acknowledges that such Secured Continuing
Corporate Guaranty remains in full force and effect, and consents to and
acknowledges the terms of this Amendment as of the date first set forth above.
JAVELIN SYSTEMS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CHIEF FINANCIAL OFFICER
-----------------------------------------
CCI GROUP, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CHIEF FINANCIAL OFFICER
-----------------------------------------
POSNET COMPUTERS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CHIEF FINANCIAL OFFICER
-----------------------------------------
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THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (the
"Amendment") is dated as of this ____ day of January, 1999 and is entered
into among Javelin Systems, Inc., CCI Group, Inc. and Posnet Computers, Inc.
(jointly and severally, "Borrower") and FINOVA Capital Corporation ("FINOVA"),
in reference to that certain Loan and Security Agreement among them (the
"Loan Agreement") dated June 8, 1998, as amended. Capitalized terms herein,
unless otherwise defined herein, shall have the meaning set forth in the Loan
Agreement.
(a) FINOVA currently provides financial accommodations to Borrower
pursuant to the terms of the Loan Agreement.
(b) Borrower has requested that FINOVA provide to Javelin a letter
of credit subline in the amount of $1,000,000. FINOVA has consented to
Borrower's request on the terms and subject to the conditions set forth in this
Amendment.
Now therefore, the parties hereto do hereby agree as follows:
1. LETTERS OF CREDIT. Section 2.4 of the Loan Agreement is restated in full to
read as follows:
"At the request of Javelin, FINOVA may, in its Permitted Discretion,
arrange for the issuance of letters of credit for the account of
Javelin and guarantees of payment of such letters of credit, in each
case in form and substance satisfactory to FINOVA in its sole
discretion (collectively, "Letters of Credit"). The aggregate face
amount of all outstanding Letters of Credit from time to time shall
not exceed the amount shown on the Schedule, and shall be reserved
against the availability of Revolving Credit Loans to Javelin.
Javelin shall pay all bank charges for the issuance of Letters of
Credit, together with an additional fee to FINOVA equal to the
percentage set forth on the Schedule of the aggregate face amount of
each Letter of Credit outstanding from time to time during the term of
this Agreement (the "L/C Fee"). The L/C Fee shall be deemed to be
fully earned upon the issuance of each Letter of Credit and shall be
due and payable on the first Business Day of each month following a
month during which any Letter of Credit is outstanding. Any advance
by FINOVA under or in connection with a Letter of Credit shall
constitute an Obligation hereunder. Each Letter of Credit shall have
an expiry date no later than thirty (30) days prior to the last day of
the Initial Term or, if issued during any Renewal Term no later than
thirty (30) days prior to the last day of such Renewal Term.
Immediately upon any termination of this Agreement, Javelin shall
either: (i) provide cash collateral to FINOVA in an amount equal to
105% of the maximum amount of FINOVA's obligations under or in
connection with all then outstanding Letters of Credit, or (ii) cause
to be delivered to FINOVA releases of all of FINOVA's obligations
under outstanding Letters of Credit. At FINOVA's
discretion, any proceeds of Collateral received by FINOVA may be held
as the cash collateral required by this Section 2.4. Javelin hereby
agrees to indemnify, save, and hold FINOVA harmless from any loss,
cost, expense, or liability, including payments made by FINOVA,
expenses, and reasonable attorneys' fees incurred by FINOVA arising
out of or in connection with any Letters of Credit. Javelin agrees to
be bound by the issuing bank's regulations and interpretations of any
Letters of Credit guarantied by FINOVA and opened for Javelin's
account or by FINOVA's interpretations of any Letter of Credit issued
by FINOVA for Javelin's account, and Javelin understands and agrees
that FINOVA shall not be liable for any error, negligence, or mistake,
whether of omission or commission, in following Javelin's instructions
or those contained in the Letters of Credit or any modifications,
amendments, or supplements thereto. Javelin understands that FINOVA
may indemnify the bank issuing a Letter of Credit for certain costs or
liabilities arising out of claims by Javelin against such issuing
bank. Javelin hereby agrees to indemnify and hold FINOVA harmless
with respect to any loss, cost, expense, or liability incurred by
FINOVA under any such indemnification by FINOVA to any issuing bank."
2. CONDITIONS TO ADVANCES. The introductory clause of Section 4.2 of the Loan
Agreement is hereby deleted and replaced with the following:
"The obligation of FINOVA to make any advance or cause any Letter of
Credit to be issued hereunder (including the initial advance) shall be
subject to the further conditions precedent that, on and as of the
date of such advance or Letter of Credit issuance:"
3. REVOLVING LOAN LOANS. Clause (b)(i) of the borrowing formula of Javelin,
set forth on page S-2 of the Schedule to the Loan Agreement, is hereby
amended in full to read as follows:
"an amount equal to (A) 80% of the net amount of Javelin's Eligible
Receivables, less (B) the aggregate undrawn face amount of all Letters
of Credit issued under Section 2.4 of this Agreement; plus"
4. LETTERS OF CREDIT. The following is inserted at page S-3 immediately
following the paragraph entitled "Term Loan":
"LETTERS OF CREDIT (SECTION 2.4):
The aggregate face amount of all outstanding Letters of Credit from
time to time shall not exceed $1,000,000, and shall be reserved
against the availability of Revolving Credit Loans to Javelin pursuant
to Section 2.4 hereof. The L/C Fee shall equal 2.0% per annum of the
aggregate face amount of each Letter of Credit outstanding from time
to time during the term of this
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Agreement. The L/C Fee shall be deemed to be fully earned upon the
issuance of each Letter of Credit and shall be due and payable on the
first Business Day of each month following a month during which any
Letter of Credit is outstanding."
5. REPRESENTATIONS AND WARRANTIES. Borrower confirms to FINOVA that as of the
date hereof the representations and warranties contained in Section 5 of
the Loan Agreement are (before and after giving effect to this Amendment)
true and correct in all material respects (except to the extent any such
representation or warranty is expressly stated to have been made as of a
specific date, in which case it shall be true and correct as of such
specific date) and that no Default or Event of Default has occurred and is
continuing.
6. CONDITIONS PRECEDENT. Each of the following shall be a condition precedent
to the effectiveness of this Amendment:
(i) FINOVA shall have received this Amendment, duly executed by each of
the parties hereto, and such other documents and agreements as it
shall reasonably require.
(ii) No Default or Event of Default shall exist.
(iii) All fees payable by Borrower hereunder and under the Loan Agreement
shall have been received by FINOVA.
7. ACCOMMODATION FEE. In consideration of this Amendment and the financial
accommodations made available to Borrower from FINOVA, Borrower shall pay
to FINOVA on the date hereof an accommodation fee of $1,500, which fee
shall be deemed fully earned upon execution of this Amendment and shall be
in addition to all other fees and charges payable by Borrower to FINOVA.
8. REAFFIRMATION. Except as amended by the terms herein, the Loan Documents
remain in full force and effect. If there is any conflict between the terms
and provisions of the Loan Documents and the terms and provisions of this
Amendment, the terms and provisions of this Amendment shall govern.
9. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
10. GOVERNING LAW. This Amendment shall be governed by and construed according
to the laws of the State of Arizona.
11. ATTORNEYS' FEES. Borrower shall pay, on demand, all attorneys' fees and
costs incurred in connection with the negotiation, documentation and
execution of this Amendment. Further, if any legal action or proceeding
shall be commenced at any time by any party to this Amendment in connection
with its interpretation and enforcement, the prevailing party or parties in
such action or proceeding shall be entitled to reimbursement of its
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reasonable attorneys' fees and costs in connection therewith, in addition
to all other relief to which the prevailing party or parties may be
entitled.
12. WAIVER OF JURY TRIAL. Each of the parties hereto waives its right to a
trial by jury in any action to enforce, defend or interpret, or otherwise
concerning, this Amendment.
FINOVA CAPITAL CORPORATION
By:
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Its:
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JAVELIN SYSTEM INC.
By: /s/ [ILLEGIBLE]
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Its: CFO
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CCI GROUP, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CFO
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POSNET COMPUTERS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CFO
-----------------------------------------
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Each of the undersigned guarantors reaffirms the terms of its Secured Continuing
Corporate Guaranty dated June 8, 1998, acknowledges that such Secured Continuing
Corporate Guaranty remains in full force and effect, and consents to and
acknowledges the terms of this Amendment as of the date first set forth above.
JAVELIN SYSTEMS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CFO
-----------------------------------------
CCI GROUP, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CFO
-----------------------------------------
POSNET COMPUTERS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: CFO
-----------------------------------------
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