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EXHIBIT 10.69
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is entered into this 15th day of October, 1996 and made effective
as of October 1, 1996, by and between XXXXX MICROCOMPUTER PRODUCTS, INC., a
Georgia corporation (hereinafter referred to as "Borrower") with its chief
executive office and principal place of business at 0000 Xxxxxxxxx Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000, and THE CIT GROUP/CREDIT FINANCE, INC., a
Delaware corporation (hereinafter, together with its successors and assigns,
referred to as "Lender") with an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
RECITALS:
Lender and Borrower are parties to a certain Loan and Security
Agreement and a certain Conditions Precedent Rider thereto, both dated December
21, 1995, as amended by that certain First Amendment to Loan and Security
Agreement, dated April 16, 1996, between Borrower and Lender and that certain
First Amendment to Conditions Precedent Rider dated April 16, 1996
(collectively, as at any time amended, the "Loan Agreement") pursuant to which
Lender may make revolving credit and term loans to Borrower in accordance with
the terms thereof.
The parties desire to amend the Loan Agreement as hereinafter set
forth.
NOW, THEREFORE, for and in consideration of TEN DOLLARS ($10.00) in
hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meanings ascribed to such terms
in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
(a) By deleting the reference to "$30,000,000" in the
thirteenth line of Section 3.1(b) and by inserting in lieu thereof the
reference to "$21,000,000"
(b) By deleting Section 9.1 in its entirety and by
substituting in lieu thereof the following:
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9.1 Term. This Agreement shall only become
effective upon execution and delivery by Borrower and Lender
in Atlanta, Georgia, and shall continue in full force and
effect for a term of four (4) years from the Closing Date
hereof and shall be deemed automatically renewed for
successive terms of four (4) years thereafter unless
terminated as of the end of the initial or any renewal term
(each a "TERM") by either party giving the other written
notice at least sixty (60) days' prior to the end of the
then-current Term.
(c) By deleting the reference to "September 30, 1996"
and "September 30, 1997" in Section 10.4 and by substituting in lieu
thereof a reference to "December 31, 1996" and "December 31, 1997"
respectively.
3. ACKNOWLEDGEMENTS AND STIPULATIONS. Each of the Transaction
Documents is modified by the Bringdown Certificate dated April 16, 1996,
executed by Xxxxxx X. Xxxxx as President of Borrower (the "Bringdown
Certificate"). Borrower acknowledges and stipulates that the Loan Agreement and
the other Transaction Documents executed by Borrower are legal, valid and
binding obligations of Borrower that are enforceable against Borrower in
accordance with the terms thereof; all of the Obligations are owing and payable
without defense, offset or counterclaim (and to the extent there exists any
such defense, offset or counterclaim on the date hereof, the same is hereby
waived by Borrower); and the security interests and liens granted by Borrower
in favor of Lender are duly perfected, first priority security interests and
liens.
4. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Lender, to induce Lender to enter into this Amendment; that the
execution, delivery and performance of this Amendment have been duly authorized
by all requisite corporate action on the part of Borrower and this Amendment
has been duly executed and delivered by Borrower.
5. EXPENSES OF LENDER. Borrower agrees to pay, ON DEMAND, all
costs and expenses incurred by Lender in connection with the preparation,
negotiation and execution of this Amendment and any other Transaction Documents
executed pursuant hereto and any and all amendments, modifications, and
supplements thereto, including, without limitation, the costs and fees of
Lender's legal counsel and any taxes or expenses associated with or incurred in
connection with any instrument or agreement referred to herein or contemplated
hereby.
6. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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8. NO NOVATION, ETC.. Except as otherwise expressly provided in
this Amendment, nothing herein shall be deemed to amend or modify any provision
of the Loan Agreement, the Subsidiary Security Agreements, or any of the other
Transaction Documents, each of which shall remain in full force and effect.
This Amendment is not intended to be, nor shall it be construed to create, a
novation or accord and satisfaction, and the Loan Agreement as herein modified
shall continue in full force and effect. Notwithstanding any prior mutual
temporary disregard of any of the terms of any of the Transaction Documents,
the parties agree that the terms of each of the Transaction Documents shall be
strictly adhered to on and after the date hereof.
9. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Agreement on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall
be deemed to be an original signature hereto.
10. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS
AMENDMENT, BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER, AND
ALL OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF LENDER,
FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OR ACTIONS OF
ANY KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT, DISPUTED
OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT BORROWER NOW HAS
OR EVER HAD AGAINST LENDER ARISING UNDER OR IN CONNECTION WITH ANY OF THE
TRANSACTION DOCUMENTS OR OTHERWISE.
11. WAIVER OF JURY TRIAL. THE PARTIES HERETO EACH HEREBY WAIVES
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal in Atlanta, Georgia, and
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delivered by their respective duly authorized officers on the date first
written above.
ATTEST: XXXXX MICROCOMPUTER PRODUCTS, INC.
("Borrower")
/s/ By: /s/ Xxxxxx X. Xxxxx
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Secretary Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
Accepted and Agreed to:
THE CIT GROUP/CREDIT FINANCE, INC.
("Lender")
By /s/ Xxxxx X. Xxxxxxx
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Title: Assistant Vice President
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CONSENT AND REAFFIRMATION
The undersigned guarantors of the Obligations of Borrower at any time
owing to Lender hereby (i) acknowledge receipt of a copy of the foregoing
Second Amendment to Loan and Security Agreement; (ii) consent to Borrower's
execution and delivery thereof and of the other documents, instruments or
agreements Borrower agrees to execute and deliver pursuant thereto; (iii) agree
to be bound thereby; and (iv) affirm that nothing contained therein shall
modify in any respect whatsoever its respective guaranty of the Obligations and
reaffirm that such guaranty is and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of such Second Amendment to Loan and
Security Agreement.
XXXXX MICROCOMPUTER PRODUCTS
(AUSTRALIA) PTY LIMITED
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Director
XXXXX MICROCOMPUTER PRODUCTS
(CANADA) LIMITED
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, President
PRACTICAL PERIPHERALS (EUROPE)
LIMITED
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Director
[Signatures continued on following page]
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XXXXX MICROCOMPUTER PRODUCTS
(FRANCE) S.A.R.L.
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX,
Authorized Representative
XXXXX MICROCOMPUTER PRODUCTS
DE MEXICO S.A. DE C.V.
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Sole
Administrator
XXXXX MICROCOMPUTER PRODUCTS
(SCANDINAVIA) APS
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Managing
Director
By: /s/ Xxxxxxx Xxxxx Xxxxxx
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XXXXXXX XXXXX XXXXXX,
Managing Director
XXXXX MICROCOMPUTER PRODUCTS
(INTERNATIONAL) LIMITED
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, President
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ENTERPRISE TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
XXXX X. XXXXXX, President
XXXXX GOVERNMENT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, President
/s/ Xxxxxx X. Xxxxx (SEAL)
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XXXXXX X. XXXXX
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XXXXX MICROCOMPUTER PRODUCTS, INC.
SECRETARY'S CERTIFICATE
OF
BOARD OF DIRECTORS RESOLUTIONS
I, Xxxxx X. Xxxxx, DO HEREBY CERTIFY, that I am the Secretary of XXXXX
MICROCOMPUTER PRODUCTS, INC. (the "Corporation"), a corporation duly organized
and existing under and by virtue of the laws of the State of Georgia and am
keeper of the records and seal thereof; that the following is a true, correct
and compared copy of the resolutions duly adopted by the unanimous consent of
all members of the Board of Directors of said Corporation effective as of
October 15th, 1996; and that said resolutions are still in full force and
effect:
RESOLVED, that the Chairman of the Board, President, any Vice
President, or any other officer or board member of this Corporation (or the
designee of any of them), each be, and each hereby is, authorized and empowered
(either alone or in conjunction with any one or more of the other officers of
the Corporation) to take, from time to time, all or any part of the following
actions on or in behalf of the Corporation: (i) to make, execute and deliver to
THE CIT GROUP/CREDIT FINANCE, INC. ("Lender") (1) a Second Amendment to Loan
and Security Agreement (the "Loan Amendment") providing for the amendment of
certain terms of that certain Loan and Security Agreement dated December 21,
1995 between the Corporation and Lender, as amended (the "Loan Agreement"), (2)
a First Amendment to Conditions Precedent Rider ("Conditions Amendment")
providing for the amendment of certain terms of that certain Conditions
Precedent Rider dated December 21, 1995, and (3) all other agreements,
documents and instruments contemplated by or referred to in the Loan Amendment
and Conditions Amendment or executed by the Corporation in connection
therewith; said Loan Amendment or Conditions Amendment to be substantially in
the form presented by Lender with such additional, modified or revised terms as
may be acceptable to any officer or director of the Corporation, as
conclusively evidenced by his or her execution thereof; and (ii) to carry out,
modify, amend or terminate any arrangements or agreements at any time existing
between the Corporation and Lender.
RESOLVED, that any arrangements, agreements, security agreements, or
other instruments or documents referred to or executed pursuant to the Loan
Amendment and Conditions Amendment by Xxxxxx X. Xxxxx, any other officer or
director of the Corporation, or by an employee of the Corporation acting
pursuant to delegation of authority, may be attested by such person and may
contain such terms and provisions as such person shall, in his or her sole
discretion, determine.
RESOLVED, that the Loan Agreement and each amendment to the Loan
Agreement heretofore executed by any officer or director of the Corporation and
any actions taken under the Loan Agreement as thereby amended are hereby
ratified and approved.
I DO FURTHER CERTIFY that Xxxxxx X. Xxxxxxxxxxx is the President of
the Corporation and Xxxxx X. Xxxxx is the Secretary of the Corporation and each
is duly elected, qualified and acting as such, respectively.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal
of the Corporation in Atlanta, Georgia, this 15th day of October, 1996.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Secretary
[CORPORATE SEAL]
I, Xxxxxx X. Xxxxxxxxxxx, President of said Corporation, do hereby
certify that the foregoing is a correct copy of the resolutions passed by the
Board of Directors of the Corporation and that Xxxxx X. Xxxxx is Secretary of
the Corporation and is duly authorized to attest to the passage of said
resolutions.
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, President
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