AND WAIVER TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 4, dated as of January 26, 2001, to Amendment No. 8 and
Waiver, dated as of August 11, 2000, as amended by Amendment No. 1, dated as of
December 12, 2000, Amendment No. 2, dated as of December 29, 2000, and Amendment
No. 3, dated as of January 12, 2001 (the "Eighth Amendment"), to the LOAN AND
SECURITY AGREEMENT, dated as of September 30, 1998 (as amended to date) as
hereafter modified, amended and/or RESTATED FROM TIME TO TIME, THE "LOAN AND
SECURITY AGREEMENT"), among FOOTHILL CAPITAL CORPORATION, a California
CORPORATION ("FOOTHILL"), DATA SYSTEMS NETWORK CORPORATION, A MICHIGAN
CORPORATION ("OLD BORROWER") and TEKINSIGHT SERVICES INC., A Delaware
Corporation ("NEW BORROWER").
PREAMBLE
Pursuant to the Loan and Security Agreement, Foothill established a
revolving line of credit for the benefit of Old Borrower. Pursuant to the Merger
Agreement (as defined in the Eighth Amendment) Old Borrower merged into New
Borrower, with New Borrower continuing as the Surviving Corporation. Pursuant to
the Eighth Amendment, the parties agreed to negotiate during the 120-day period
following the Effective Date (as defined in the Eighth Amendment) with a view to
entering into a replacement loan and security agreement. Whereas, the 120-day
period expired as of December 12, 2000, the parties entered into Amendment No. 1
to the Eighth Amendment to, among other things, extend such date to December 31,
2000. Whereas, on December 29, 2000 and January 12, 2001, the parties entered
into Amendments No. 2 and 3 to the Eighth Amendment, respectively, to extend
such date further. Whereas such date expires on January 26, 2001, the parties
hereto now desire to extend this date to February 28, 2001. Accordingly, New
Borrower and Foothill hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the Eighth
Amendment and not otherwise defined herein shall have the meanings given to such
terms in the Eighth Amendment.
2. REPLACEMENT LOAN AND SECURITY AGREEMENT. Section 7 of the Eighth
Amendment is hereby amended and restated as follows:
"7. REPLACEMENT LOAN AND SECURITY AGREEMENT. The parties hereto
agree to negotiate during the 198-day period following the Effective
Date with a view to entering into either (i) a loan and security
agreement and related agreements that would supercede the Loan and
Security Agreement and Loan Documents or (ii) amendments to the Loan
and Security Agreement and Loan Documents on terms and conditions to
be determined. If no such agreements are executed and delivered on or
before the date which is 198 days after the Effective Date, all Notes
shall automatically mature, and all principal, interest, reimbursement
obligations and fees then accrued and outstanding under any Loan
Document shall be immediately due and payable together with a fee in
the amount of two percent (2%) of the Maximum Revolving Amount then in
effect. Notwithstanding the provisions of Section 3.6 of the Loan and
Security Agreement, the Early Termination Premium payable at any time
during the 198-day period following the Effective Date shall be two
percent (2%) of the Maximum Revolving Amount then in effect."
3. CONDITIONS AND COVENANTS.
This Amendment shall become effective only upon satisfaction
in full of the following conditions precedent (the first date upon which all
such conditions have been satisfied being herein called the "AMENDMENT EFFECTIVE
DATE"):
(i) The representations and warranties contained in this Amendment and in
Section 5 of the Loan and Security Agreement and each other Loan Document shall
be correct on and as of the Amendment Effective Date as though made on and as of
such date (except where such representations and warranties relate to an earlier
date in which case such representations and warranties shall be true and correct
as of such earlier date); no Default or Event of Default shall have occurred and
be continuing on the Amendment Effective Date or result from this Amendment
becoming effective in accordance with its terms.
(ii) Foothill shall have received two (2) counterparts of this Amendment,
duly executed by New Borrower and Parent.
(iii) All legal matters incident to this Amendment shall be satisfactory to
Foothill and its counsel.
4. REPRESENTATIONS AND WARRANTIES. New Borrower hereby represents and
warrants to Foothill as follows:
(a) New Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (ii)
has all requisite corporate power, authority and legal right to execute, deliver
and perform this Amendment, and to perform the Eighth Amendment, as amended
hereby.
(b) The execution, delivery and performance of this Amendment
by New Borrower, and the performance by New Borrower of the Eighth Amendment, as
amended hereby (i) have been duly authorized by all necessary corporate action,
(ii) do not and will not contravene its charter or by-laws or any applicable
law, and (iii) except as provided in the Loan Documents, do not and will not
result in the creation of any Lien upon or with respect to any of its respective
properties.
(c) This Amendment and the Eighth Amendment, as amended
hereby, constitute the legal, valid and binding obligations of New Borrower,
enforceable against New Borrower in accordance with its terms.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other Person is required
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in connection with the due execution, delivery and performance by New Borrower
of this Amendment and the performance by New Borrower of the Eighth Amendment,
as amended hereby.
(e) The representations and warranties contained in Section 5
of the Loan and Security Agreement and each other Loan Document are correct on
and as of the Amendment Effective Date as though made on and as of the Amendment
Effective Date (except to the extent such representations and warranties
expressly relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date) and no Default or
Event of Default has occurred and is continuing on and as of the Amendment
Effective Date or will result from this Amendment becoming effective in
accordance with its terms.
5. CONTINUED EFFECTIVENESS OF THE LOAN AND SECURITY AGREEMENT
AND LOAN DOCUMENTS. Borrower hereby (i) confirms and agrees that each Loan
Document to which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects except that on and
after the Amendment Effective Date of this Amendment all references in any such
Loan Document to "the Loan and Security Agreement", the "Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan and
Security Agreement shall mean the Loan and Security Agreement as amended by the
Eighth Amendment, as amended by this Amendment, and (ii) confirms and agrees
that to the extent that any such Loan Document purports to assign or pledge to
Foothill, or to grant a security interest in or Lien on, any collateral as
security for the obligations of Borrower from time to time existing in respect
of the Loan and Security Agreement and the Loan Documents, such pledge,
assignment and/or grant of the security interest or Lien is hereby ratified and
confirmed in all respects.
6. MISCELLANEOUS.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) Borrower will pay on demand all reasonable fees, costs and
expenses of Foothill in connection with the preparation, execution and delivery
of this Amendment including, without limitation, reasonable fees disbursements
and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to Foothill.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 4 to be executed and delivered as of the date set forth on the
first page hereof.
TEKINSIGHT SERVICES INC.,
a Delaware corporation
By: --------------------------------
Name:
Title:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
Name:
Title:
Acknowledged and Agreed upon
as of this 26th day of January, 2001
XXXXXXXXXX.XXX,
a Delaware corporation, as Guarantor
By: -------------------
Name:
Title:
