THIRD AMENDMENT AND CONSENT UNDER
CREDIT FACILITIES AGREEMENT
This THIRD AMENDMENT AND CONSENT UNDER CREDIT FACILITIES AGREEMENT (this
"Agreement") is entered into and effective as of April 11, 2002, by and among
Xxxxxxx Computer Resources, Inc., Xxxxxxx Select Integration Solutions, Inc.,
Xxxxxxx Select Advisory Services, Inc., Xxxxxxx Computer Resources Sales
Company, Inc., Xxxxxxx Computer Resources Holding Company, Inc., Xxxxxxx
Computer Resources Operations, LLP, Technology Integration Financial Services,
Inc., T.I.F.S. Advisory Services, Inc., TheLinc, LLC and Val Tech Computer
Systems, Inc. (collectively and separately referred to as, "Borrower"), and
Deutsche Financial Services Corporation ("DFS"), as Administrative Agent, and
DFS and the other lenders listed on the signature pages and Exhibit 3 to the
Loan Agreement and their respective successors and permitted assigns, as
"Lenders" (the "Lenders").
RECITALS:
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A. Borrower, Administrative Agent and Lenders are party to that certain Credit
Facilities Agreement dated as of June 28, 2001, as amended by the First
Amendment to Credit Facilities Agreement dated as of November 13, 2001, as
further amended by the Second Amendment to Credit Facilities Agreement
dated as of March 18, 2002 (the "Original Loan Agreement").
B. Lenders and Borrower have agreed to the provisions set forth herein on the
terms and conditions contained herein.
AGREEMENT
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Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower,
Administrative Agent and the Lenders hereby agree as follows:
1. DEFINITIONS. All references to the "Agreement" or the "Loan Agreement" in the
Original Loan Agreement and in this Agreement shall be deemed to be references
to the Original Loan Agreement as it is amended hereby and as it may be amended,
restated, extended, renewed, replaced, or otherwise modified from time to time.
Capitalized terms used and not otherwise defined herein have the meanings given
them in the Loan Agreement.
2. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective as of April
11, 2002, but only if this Agreement has been executed by each Borrower,
Administrative Agent and the Lenders.
3. CONSENT TO TIFS TRANSACTION. Notwithstanding the terms of Sections 11.11
(Other Names), 11.32 (State of Collateral), 13.2 (Corporate Existence), 13.4
(Inventory), 13.12.3 (Compliance with Terms of Security Documents), 14.9
(Disposal of Property), 14.14 (Change of State of Formation; Change of Name),
14.15 (Change of Business), or 14.18 (Conflicting Agreements) of the Loan
Agreement and any corresponding provisions of the Security Documents, the
Lenders hereby consent to (a) the sale by Technology Integration Financial
Services, Inc. ("TIFS") and T.I.F.S. Advisory Services, Inc. ("TIFS Advisory")
of substantially all of their assets (the "TIFS Purchased Assets") used by TIFS
and TIFS Advisory in the business of leasing and financing the acquisition of
various types of equipment to commercial users to Information Leasing
Corporation, an Ohio corporation (the "TIFS Sale Transaction"), (b) the release
of the Security Interests of Administrative Agent (for the benefit of the
Lenders) in the TIFS Purchased Assets, and (c) the change of name of TIFS and
TIFS Advisory. Lenders further agree that the obligations of Xxxxxxx Computer
Resources, Inc., TIFS, and TIFS Advisory under
the Asset Purchase Agreement (defined below) and the documents executed in
connection therewith will not constitute Indirect Obligations under the Loan
Agreement. The consents provided above are provided only with respect to the
Loan Agreement and the Loan Documents, and are not intended as, nor may they be
relied upon as, a consent under any other contractual arrangement between any
Borrower and any Lender or any Affiliate of any Lender, pursuant to which any
aspect of the transactions contemplated by this Agreement may be restricted or
prohibited. Each Lender reserves all of its rights under any such contractual
arrangement. The consents provided above are subject to the satisfaction of each
of the following conditions:
3.1. The TIFS Sale Transaction must be consummated on or before April 26,
2002 substantially in accordance with the terms of that certain Asset Purchase
Agreement among TIFS, TIFS Advisory, Xxxxxxx Computer Resources, Inc., and
Information Leasing Corporation dated February 27, 2002 (the "Asset Purchase
Agreement").
3.2. The Asset Purchase Agreement must not be amended or modified unless
such amendment or modification is approved in advance, in writing, by
Administrative Agent.
3.3. TIFS and TIFS Advisory must not recognize a net book loss on the sale
of the TIFS Purchased Assets.
If any of the foregoing conditions are not satisfied (as determined by
Administrative Agent and the Lenders in their commercially reasonable
discretion), the foregoing consents will be automatically revoked.
4. CONSENT TO VAL TECH TRANSACTION.
Notwithstanding the terms of Sections 11.11 (Other Names), 11.32 (State of
Collateral), 13.2 (Corporate Existence), 13.4 (Inventory), 13.12.3 (Compliance
with Terms of Security Documents), 14.9 (Disposal of Property), 14.14 (Change of
State of Formation; Change of Name), 14.15 (Change of Business), or 14.18
(Conflicting Agreements) of the Loan Agreement and any corresponding provisions
of the Security Documents, the Lenders hereby consent to (a) the sale by Val
Tech Computer Systems, Inc. ("Val Tech") of substantially all of the assets
owned by Val Tech as of the date of this Agreement (the "Val Tech Assets") (the
"Val Tech Sale Transaction"), (b) the release of the Security Interests of
Administrative Agent (for the benefit of the Lenders) in the Val Tech Assets,
and (c) the change of name of Val Tech. The consents provided above are provided
only with respect to the Loan Agreement and the Loan Documents, and are not
intended as, nor may they be relied upon as, a consent under any other
contractual arrangement between any Borrower and any Lender or any Affiliate of
any Lender, pursuant to which any aspect of the transactions contemplated by
this Agreement may be restricted or prohibited. Each Lender reserves all of its
rights under any such contractual arrangement. The consents provided above are
subject to the satisfaction of each of the following conditions:
4.1. Val Tech must not recognize a net book loss on the sale of the Val
Tech Purchased Assets.
4.2. The Val Tech Transaction must be closed on reasonable business terms
in an arm's length transaction.
4.3. Copies of all of the documents executed in connection with the Val
Tech Transaction must be promptly delivered to Administrative Agent and each of
the Lenders.
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If any of the foregoing condition are not satisfied (as determined by
Administrative Agent and the Lenders in their commercially reasonable
discretion), the foregoing consents will be automatically revoked.
5. NEW NAMES; UCC FINANCING STATEMENTS. Borrower will provide copies to
Administrative Agent of any amendments to the Charter Documents of TIFS, TIFS
Advisory, or Val Tech pursuant to the TIFS Sale Transaction or the Val Tech Sale
Transaction prior to the filing thereof, and will provide file-stamped copies of
such amendments within one Business Day of the filing thereof. TIFS, TIFS
Advisory, and Val Tech hereby authorize Administrative Agent to file any
financing statements deemed appropriate by Administrative Agent against the new
names of TIFS, TIFS Advisory, and Val Tech. Each Borrower acknowledges that
TIFS, TIFS Advisory, and Val Tech will continue to be Borrowers under the Loan
Agreement and will remain subject to the representations, warranties, and
covenants contained in the Loan Agreement.
6. AMENDMENTS. The Original Loan Agreement is hereby amended as follows:
6.1. PERMITTED INVESTMENTS. Section 14.1 of the Original Loan Agreement is
amended by inserting the following new Section 14.1.7:
14.1.7. Investments by Xxxxxxx Computer Resources, Inc.,
Xxxxxxx Computer Resources Sales Company, Inc., or Xxxxxxx
Computer Resources Operations, LLP made under that certain
Residual Investment Participation Addendum to the Exclusive
Vendor Agreement executed in connection with that certain
Asset Purchase Agreement among T.I.F.S. Advisory Services,
Inc., Technology Integration Financial Services, Inc.,
Xxxxxxx Computer Resources, Inc., and Information Leasing
Corporation dated as of February 27, 2002, provided the
aggregate dollar amount of such Investments does not exceed
$3,000,000.
7. REPRESENTATIONS AND WARRANTIES OF BORROWER. Each Borrower hereby represents
and warrants to Administrative Agent and the Lenders that (i) such Borrower's
execution of this Agreement has been duly authorized by all requisite action of
such Borrower; (ii) no consents are necessary from any third parties for such
Borrower's execution, delivery or performance of this Agreement, (iii) this
Agreement, the Loan Agreement, and each of the other Loan Documents, constitute
the legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their terms, except to the extent that the
enforceability thereof against Borrower may be limited by bankruptcy, insolvency
or other laws affecting the enforceability of creditors rights generally or by
equity principles of general application, (iv) except as disclosed on the
disclosure schedule attached to the Original Loan Agreement, all of the
representations and warranties contained in Section 11 of the Loan Agreement are
true and correct with the same force and effect as if made on and as of the date
of this Agreement, and (v) after giving effect to this Agreement, there is no
Existing Default.
8. REAFFIRMATION. Each Borrower hereby acknowledges and confirms that (i) the
Loan Agreement and the other Loan Documents remain in full force and effect,
(ii) such Borrower has no defenses to its obligations under the Loan Agreement
and the other Loan Documents, (iii) the Security Interests of the Administrative
Agent under the Security Documents secure all the Loan Obligations under the
Loan Agreement, continue in full force and effect, and have the same priority as
before this Agreement, and (iv) such Borrower has no claim against
Administrative Agent or any Lender arising from or in connection with the Loan
Agreement or the other Loan Documents.
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9. GOVERNING LAW. This Agreement has been executed and delivered in St. Louis,
Missouri, and shall be governed by and construed under the laws of the State of
Missouri without giving effect to choice or conflicts of law principles
thereunder.
10. SECTION TITLES. The section titles in this Agreement are for convenience of
reference only and shall not be construed so as to modify any provisions of this
Agreement.
11. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Agreement may be executed in one
or more counterparts and on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
12. INCORPORATION BY REFERENCE. Administrative Agent, Lenders and Borrower
hereby agree that all of the terms of the Loan Documents are incorporated in and
made a part of this Agreement by this reference.
13. NOTICE-ORAL COMMITMENTS NOT ENFORCEABLE.
The following notice is given pursuant to Section 432.045 of the Missouri
Revised Statutes; nothing contained in such notice shall be deemed to limit or
modify the terms of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT,
ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS
WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO
MODIFY IT.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES IMMEDIATELY
FOLLOWS}
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
XXXXXXX COMPUTER RESOURCES, INC., AS A BORROWER
By:
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Name:
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Title:
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XXXXXXX SELECT INTEGRATION SOLUTIONS, INC., AS A BORROWER
By:
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Name:
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Title:
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XXXXXXX SELECT ADVISORY SERVICES, INC., AS A BORROWER
By:
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Name:
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Title:
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XXXXXXX COMPUTER RESOURCES SALES COMPANY, INC., AS A BORROWER
By:
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Name:
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Title:
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XXXXXXX COMPUTER RESOURCES HOLDING COMPANY, INC., AS A BORROWER
By:
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Name:
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Title:
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XXXXXXX COMPUTER RESOURCES OPERATIONS, LLP, AS A BORROWER
By:
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Name:
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Title:
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TECHNOLOGY INTEGRATION FINANCIAL SERVICES, INC., AS A BORROWER
By:
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Name:
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Title:
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T.I.F.S. ADVISORY SERVICES, INC., AS A BORROWER
By:
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Name:
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Title:
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THELINC, LLC, AS A BORROWER
By:
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Name:
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Title:
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VAL TECH COMPUTER SYSTEMS, INC., AS A BORROWER
By:
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Name:
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Title:
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DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Administrative Agent and a Lender
By:
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Name: Xxxxxxx XxxXxxxxx
Title: Vice President
FIRSTAR BANK, NATIONAL ASSOCIATION, AS A LENDER
By:
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Name:
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Title:
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NATIONAL CITY BANK, AS A LENDER
By:
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Name:
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Title:
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IBM CREDIT CORPORATION, AS A LENDER
By:
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Name:
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Title:
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UPS CAPITAL CORPORATION, AS A LENDER
By:
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Name:
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Title:
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FIFTH THIRD BANK, NORTHERN KENTUCKY, INC., AS A LENDER
By:
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Name:
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Title:
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TRANSAMERICA COMMERCIAL FINANCE CORPORATION, AS A LENDER
By:
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Name:
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Title:
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