AMENDMENT No. 3
to
AMENDED AND RESTATED CREDIT AGREEMENT AND OTHER AGREEMENTS
This February 19, 1997, Amendment No. 3 to Amended and Restated
Credit Agreement and Other Agreements (the "Amendment No. 3"), is made by and
among XXXXXX X. XXXXXXX XX, an individual having an office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Lender" or "Xxxxxxx"), XXXXXX X.
XXXXXXX, the wife of Xxxxxxx, with an address of 000 Xxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxx 00000 ("Xxxxxx Xxxxxxx"), DELTA COMPUTEC INC., a New York corporation
having its principal place of business located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 ("DCI"), and DELTA DATA NET, INC., a New York corporation
having its principal place of business located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 ("DDI"). DCI and DDI are referred to collectively as the
Borrower.
W I T N E S S E T H
A. This Amendment No. 3 is intended to amend in certain respects as set
forth herein, the terms and conditions of a certain 8% Subordinated Debenture
originally issued by DDI on October 28, 1992, as Amended and Restated on
February 16, 1995, pursuant to which DCI and DDI agree to pay to Xxxxxxx
$600,001 by January 31, 1998 (the "Xxxxxxx Subordinated Debenture"), which
Xxxxxxx Subordinated Debenture if guaranteed by DCI.
B. This Amendment No. 3 is intended to amend in certain respects as set
forth herein, the terms and conditions of a certain letter agreement dated May
1, 1995 (the "1995 Letter Agreement"), pursuant to which Xxxxxxx loaned to
Borrower $400,000 as part of Xxxxxxx'x commitment (the "Xxxxxxx Commitment", as
defined in the 1995 Letter Agreement) to fund a portion of an overadvance
facility (the "Overadvance Facility", as defined in the 1995 Letter Agreement)
which was entered into, also as of May 1, 1995, between the Borrower and the
Borrower's then commercial lender, National Canada Finance Corp. ("NCFC").
C. This Amendment No. 3 is also intended to amend in certain respects as
set forth herein, the terms and conditions of certain additional loan advances
(the "Additional Advances") between July 25, 1996, and October 9, 1996, in the
aggregate amount of $633,600, such Additional Advances being acknowledged by a
series of documents executed contemporaneously with the Additional Advances (the
"Additional Advance Documents").
D. This Amendment No. 3 is also intended to amend in certain respects as
set forth herein, the terms and conditions of a certain Amended and Restated
Credit Agreement (the "October 1996 Credit Agreement") between the Borrower and
Xxxxxxx whereby Xxxxxxx has agreed to provide the Borrower with Loans (as
defined in the October 1996 Credit Agreement) up to $2,550,000.
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E. The October 1996 Credit Agreement was one of a series of agreements
executed on October 10, 1996, whereby the credit facility between the Borrower,
and the Borrower's prior commercial lender, National Canada Finance Corp.
("NCFC"), was restructured (collectively, the "NCFC Restructuring"). This
Amendment No. 3 is also intended to amend each document executed by Xxxxxxx as
part of the NCFC Restructuring to provide that the rights and obligations of
Xxxxxxx pursuant to the NCFC Restructuring, as reflected in the documents used
to accomplish the NCFC Restructuring, are intended to be shared equally between
Xxxxxxx and Xxxxxx Xxxxxxx. Included within the documents relative to the NCFC
Restructuring which, in addition to the October 1996 Credit Agreement, are
intended to be amended to reflect the purposes of this Recital, are the
following: Assignment; Intercreditor Agreement; Pledge Security Agreement (and
attachments thereto); Limited Non-Recourse Guaranty and Suretyship Agreement;
Amended and Restated Promissory Note; Amended and Restated General Security
Agreement; Amended and Restated Unlimited Continuing Guaranty; and Amended and
Restated General Security Agreement (SAI/Delta, Inc.) (collectively, the "NCFC
Restructuring Documents").
F. This Amendment No. 3 is also intended to amend in certain respects as
set forth herein, the terms and conditions of certain loans and advances made by
Xxxxxxx to Delta from and after October 10, 1996, the date of the October 1996
Credit Agreement, consisting of Loans (as defined in the October 1996 Credit
Agreement) as outstanding from time to time which ever exceed the amount of
Loans which would otherwise be permitted by the Borrowing Base (as defined in
the October 1996 Credit Agreement), such excess Loans being referred to as the
"Overbase Loans". The Overbase Loans are acknowledged by a series of documents
executed contemporaneously with the granting of the Overbase Loans (the
"Overbase Loan Documents").
G. Pursuant to a document entitled Amended No. 1 to Amended and Restated
Credit Agreement and Other Documents ("Amendment No. 1"), the interest rate
relative to the Xxxxxxx Commitment, the Additional Advances and the October 1996
Credit Agreement was reduced.
H. Pursuant to a document entitled Amended No. 2 to Amended and Restated
Credit Agreement and Other Documents ("Amendment No. 2"), among other matters
dealt with therein, the Maturity Date of the October 1996 Credit Agreement was
extended to March 31, 1997, and certain other amendments or waivers were made
with regard to any non-compliance which may have existed with the Borrowing Base
(as defined in the October 1996 Credit Agreement.
X. Xxxxxxx has advised the Borrower that Xxxxxxx desires to transfer to
Xxxxxx Xxxxxxx half of Xxxxxxx'x rights, benefits, obligations and interest with
regard to:
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(i) The Xxxxxxx Subordinated Debenture;
(ii) The May 1995 Letter Agreement and the Xxxxxxx Commitment;
(iii) The Additional Advances and the Additional Advance Documents;
(iv) The Loan and the October 1996 Credit Agreement and the NCFC
Restructuring Documents; and
(v) The Overbase Loans and the Overbase Loan Documents;
and the Borrower has agreed to acknowledge the transfer from Xxxxxxx to Xxxxxx
Xxxxxxx, all on the terms and conditions set forth herein.
NOW, THEREFORE, it is agreed as follows:
1. Incorporation of Recitals. The recitals set forth in the recital
paragraphs of this Amendment No. 3 are intended to be, and are, incorporated
into this Amendment No. 3 as a part hereof.
2. Amendment to Xxxxxxx Subordinated Debenture.
(a) By the execution of this Amendment No. 3, Xxxxxxx hereby
transfers to Xxxxxx Xxxxxxx half of Xxxxxxx'x rights, benefits, obligations and
interest in the Xxxxxxx Subordinated Debenture, such that such rights, benefits,
obligations and interest of Xxxxxxx in the Xxxxxxx Subordinated Debenture are
owned one-half by Xxxxxxx ($300,000.50) and one-half by Xxxxxx Xxxxxxx
($300,000.50).
(b) By the execution of this Amendment No. 3, Xxxxxx Xxxxxxx accepts
the transfer of half of Xxxxxxx'x rights, benefits, obligations and interest in
the Xxxxxxx Subordinated Debenture, and agrees to fulfill half of any
obligations of Xxxxxxx pursuant to the Xxxxxxx Subordinated Debenture.
(c) The parties hereto agree that, from and after February 19, 1997,
the Xxxxxxx Subordinated Debenture be, and it hereby is, amended to change the
definition of the term "Xxxxxxx" from a single person, Xxxxxx X. Xxxxxxx XX, to
two persons, jointly and severally, Xxxxxx X. Xxxxxxx XX and Xxxxxx X. Xxxxxxx,
and that further Reaffirmed and Restated Xxxxxxx Subordinated Debentures will be
issued to Xxxxxxx and to Xxxxxx Xxxxxxx as set forth in paragraph 2(a) of this
Amendment No. 3.
(d) Except as amended by this Amendment No. 3, the terms and
conditions of the Xxxxxxx Subordinated Debenture be, and they hereby are, hereby
reaffirmed in their entirety.
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3. Amendment to Xxxxxxx Commitment and 1995 Letter Agreement.
(a) By the execution of this Amendment No. 3, Xxxxxxx hereby
transfers to Xxxxxx Xxxxxxx half of Xxxxxxx'x rights, benefits, obligations and
interest in the 1995 Letter Agreement and in the Xxxxxxx Commitment, such that
such rights, benefits, obligations and interest of Xxxxxxx in the 1995 Letter
Agreement and of the Xxxxxxx Commitment are owned one-half by Xxxxxxx ($200,000)
and one-half by Xxxxxx Xxxxxxx ($200,000).
(b) By the execution of this Amendment No. 3, Xxxxxx Xxxxxxx accepts
the transfer of half of Xxxxxxx'x rights, benefits, obligations and interest in
the 1995 Letter Agreement and in the Xxxxxxx Commitment, and agrees to fulfill
half of any obligations of Xxxxxxx pursuant to the 1995 Letter Agreement and the
Xxxxxxx Commitment.
(c) The parties hereto agree that, from and after February 19, 1997,
the 1995 Letter Agreement, as amended by Amendment No. 1 and as amended by
Amendment No. 2 be, and it hereby is, amended to change the definition of the
term "Xxxxxxx" from a single person, Xxxxxx X. Xxxxxxx XX, to two persons,
Xxxxxx X. Xxxxxxx XX and Xxxxxx X. Xxxxxxx, and that further Amended and
Restated 1995 Letter Agreements will be issued to Xxxxxxx and to Xxxxxx Xxxxxxx
as set forth in paragraph 3(a) of this Amendment No. 3.
(d) Except as amended by this Amendment No. 3, the terms and
conditions of the 1995 Letter Agreement, as previously amended by Amendment No.
1 and Amendment No. 2, are hereby reaffirmed in their entirety.
4. Amendment to Additional Advance and Additional Advance Documents.
(a) By the execution of this Amendment No. 3, Xxxxxxx hereby
transfers to Xxxxxx Xxxxxxx half of Xxxxxxx'x rights, benefits, obligations and
interest in the Additional Advance Documents and in the Additional Advances,
such that the rights, benefits, obligations and interest of the Additional
Advance Documents and of the Additional Advances are owned one-half by Xxxxxxx
($316,800 as of October 9, 1996) and one-half by Xxxxxx Xxxxxxx ($3-6,800 as of
October 9, 1996).
(b) By the execution of this Amendment No. 3, Xxxxxx Xxxxxxx accepts
the transfer of half of Xxxxxxx'x rights, benefits, obligations and interest in
the Additional Advance Documents and in the Additional Advances, and agrees to
fulfill half of any obligations of Xxxxxxx pursuant to the Additional Advance
Documents and the Additional Advances.
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(c) The parties hereto agree that, from and after February 19, 1997,
the Additional Advance Documents, as amended by Amendment No. 1 and as amended
by Amendment No. 2 be, and they hereby are, amended to change the lender of the
Additional Advances from a single person, Xxxxxx X. Xxxxxxx XX, to two persons,
Xxxxxx X. Xxxxxxx XX and Xxxxxx X. Xxxxxxx, and that further Amended and
Restated Additional Advance Documents will be issued to Xxxxxxx and to Xxxxxx
Xxxxxxx as set forth in paragraph 4(a) of this Amendment No. 3.
(d) Except as amended by this Amendment No. 3, the terms and
conditions of the Additional Advance Documents, as previously amended by
Amendment No. 1 and Amendment No. 2, are hereby reaffirmed in their entirety.
5. Amendment to Loan and October 1996 Credit Agreement and NCFC
Restructuring Documents.
(a) By the execution of this Amendment No. 3, Xxxxxxx hereby
transfers to Xxxxxx Xxxxxxx half of Xxxxxxx'x rights, benefits, obligations and
interest in the October 1996 Credit Agreement and in the Loan and in the NCFC
Restructuring Documents, such that the rights, benefits, obligations and
interest of the October 1996 Credit Agreement and of the Loan and of the NCFC
Restructuring Documents are owned one-half by Xxxxxxx (up to $1,275,000) and
one-half by Xxxxxx Xxxxxxx (up to $1,275,000).
(b) By the execution of this Amendment No. 3, Xxxxxx Xxxxxxx accepts
the transfer of half of Xxxxxxx'x rights, benefits, obligations and interest in
the October 1996 Credit Agreement and in the Loan and in the NCFC Restructuring
Documents, and agrees to fulfill half of any obligations of Xxxxxxx pursuant to
the October 1996 Credit Agreement and the Loan and the NCFC Restructuring
Documents.
(c) The parties hereto agree that, from and after February 19, 1997,
the October 1996 Credit Agreement, as amended by Amendment No. 1 and as amended
by Amendment No. 2, and the NCFC Restructuring Documents, be, and they hereby
are, amended to change the "Lender" from a single person, Xxxxxx X. Xxxxxxx XX,
to two persons, Xxxxxx X. Xxxxxxx XX and Xxxxxx X. Xxxxxxx, that the reference
to "Xxxxxxx" in any of those documents be, and they hereby are, amended to
change "Xxxxxxx" from a single person, Xxxxxx X. Xxxxxxx XX, to two persons,
Xxxxxx X. Xxxxxxx XX and Xxxxxx X. Xxxxxxx, and that a further Amended and
Restated Credit Agreement, a further Amended and Restated Promissory Note, and
further amended documents comprising component parts of the NCFC Restructuring
Documents will be issued to Xxxxxxx and to Xxxxxx Xxxxxxx as set forth in
paragraph 5(a) of this Amendment No. 3, and until such time as any of those
documents are issued, the existing
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documents will be deemed, between Xxxxxx X. Xxxxxxx XX and Xxxxxx Xxxxxxx, to
have been amended as set forth in this Amendment No. 3.
(d) Except as amended by this Amendment No. 3, the terms and
conditions of the October 1996 Credit Agreement, as previously amended by
Amendment No. 1 and Amendment No. 2, and the terms of the NCFC Restructuring
Documents, are hereby reaffirmed in their entirety.
6. Amendment to Overbase Loan and the Overbase Loan Documents.
(a) By the execution of this Amendment No. 3, Xxxxxxx hereby
transfers to Xxxxxx Xxxxxxx half of Xxxxxxx'x rights, benefits, obligations and
interest in the Overbase Loan Documents and in the Overbase Loan, such that the
rights, benefits, obligations and interest of the Overbase Loan Documents and of
the Overbase Loan are owned one-half by Xxxxxxx and one-half by Xxxxxx Xxxxxxx
as those Overbase Loans may exist from time to time.
(b) By the execution of this Amendment No. 3, Xxxxxx Xxxxxxx accepts
the transfer of half of Xxxxxxx'x rights, benefits, obligations and interest in
the Overbase Loan Documents and in the Overbase Loan, and agrees to fulfill half
of any obligations of Xxxxxxx pursuant to the Overbase Loan Documents and the
Overbase Loan.
(c) The parties hereto agree that, from and after February 19, 1997,
the Overbase Loan Document as amended by Amendment No. 1 and as amended by
Amendment No. 2 be, and they hereby are, amended to change the lender of the
Overbase Loan from a single person, Xxxxxx X. Xxxxxxx XX, to two persons, Xxxxxx
X. Xxxxxxx XX and Xxxxxx X. Xxxxxxx.
(d) Except as amended by this Amendment No. 3, the terms and
conditions of the Overbase Loan Documents, as previously amended by Amendment
No. 1 and Amendment No. 2, are hereby reaffirmed in their entirety.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be
duly executed and delivered by individual signatories and by the proper and duly
authorized officers of the Borrower as of the date first above written.
/s/ Xxxxxx X. Xxxxxxx XX
--------------------------------------
Xxxxxx X. Xxxxxxx XX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
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DELTA COMPUTEC INC.
By: /s/ Xxxx XxXxxx
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Xxxx XxXxxx, President
DELTA DATA NET, INC.
By: /s/ Xxxx XxXxxx
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Xxxx XxXxxx, President
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