EXHIBIT 10.2
ASSUMPTION, RATIFICATION AND AMENDMENT AGREEMENT
This ASSUMPTION, RATIFICATION AND AMENDMENT AGREEMENT (this "Agreement")
dated as of May 16, 2002, is made and entered into by and among Performance
Interconnect Corp., a Texas corporation, ("PI"). Performance Interconnect
Corp. of North. Texas, Inc., a Texas corporation ("PINT"), North Texas
PC Dynamics Inc., a Texas corporation ("NTPCD"), and Fidelity Funding
Business Credit, Ltd. dba USA. Funding, Ltd., a Texas limited partnership
("Purchaser");
W I T NE S E T H;
WHEREAS, PI and Purchaser are parties to that certain First Amended
and Restated Purchase & Sale Agreement dated as of March 31, 1998 (as
heretofore amended, the "Original Agreement");
WHEREAS, pursuant to the terms and conditions of the Original
Agreement, Purchase agreed to purchase accounts receivable of PI and made a
term loan to PI, and PI granted a security interest in all of its personal
property to secure its obligations to Purchaser;
WHEREAS, PI has notified Purchaser that effective March 23, 2001, PI
conveyed its machinery and equipment (subject to the 1iens and security
interests of Purchaser) to NTPCD;
WHEREAS, PI has further notified Purchaser that effective March 23,
2001, PI conveyed its accounts receivable and other remaining assets
(subject to the liens and security interests of Purchaser to PINT; and
WHEREAS, it is a condition to Purchaser consenting to the transfers
described above that PI, PINT and NTPCD enter into this Agreement for the
purposes set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. Assumption of Obligations; Joinder. PINT and NTPCD hereby
irrevocably and unconditionally agree that they are jointly and severally
liable with PI for the payment and performance of all indebtedness,
liabilities, duties, responsibilities and obligations of each of PI, PINT
and NTPCD arising out of or pursuant to the Original Agreement. PINT and
NTPCD each agree to be bound by the provisions of the Original Agreement,
as hereby amended.
2. Amendments to Original Agreement
(a) Each reference to "Seller" in the Original Agreement shall
be deemed to collectively refer to PI, PINT and NTPCD; provided that
all obligations of Seller under the Original Agreement shall be deemed
to be the joint and several obligations of each of PI, PINT and NTPCD.
(b) The following subsection (f) is hereby added Section 2 to of
the Original Agreement:
"(f) On the date Seller executes and delivers an Assumption,
Ratification and Amendment Agreement to Seller (the "Execution
Date"), Seller shall pay to Purchaser a commitment fee equal to
one percent (1 %) of the Commitment, which fee shall, be prorated
for the period beginning on the Execution Date and ending on
August 27, 2002. Seller further agrees to pay to Seller an
annual commitment fee in the amount of one percent (1%) of the
Commitment payable on August 28, 2002, and on each August 28
thereafter during the Term (as defined in paragraph 14). Seller
hereby authorizes Purchaser to deduct each commitment fee from
the purchase price for Eligible Accounts or to charge each
commitment fee against the Reserve Accounts, as Purchaser elects
at its sole discretion."
(c) Section 4A of the Original Agreement is hereby deleted in its
entirety. Each reference to an "Inventory Advance" in the Original Agreement
is hereby deleted.
3. Ratification of Documents. PI, PINT and NTPCD hereby ratify and
confirm the Original Agreement, as amended hereby. PI acknowledges and
confirms that the liens and security interests granted under the Original
Agreement remain in full force and effect and are unimpaired by the
transfers by PI to PINT and NTPCD and the transactions contemplated hereby.
4. Collateral. In order to secure the payment of all indebtedness and
obligations of Seller to Purchaser, whether presently existing or hereafter
arising, each of PI, PINT and NTPCD hereby grants to Purchaser a security
interest in and lien upon all of such person's right, title and interest in
and to (a) the Reserve Accounts and all payments (if any) due or to become
due to Seller from the Reserve Accounts; (b) all accounts (including all
health care insurance receivables), contract rights, general intangibles,
receivables and claims whether now existing or hereafter arising, all
guaranties and security therefor and all, of such person's right title and
interest in the goods purchased and represented thereby, if any, including
all of such person's rights in and to returned goods and rights of stoppage
in transit, replevin and reclamation as unpaid vendor; (c) all inventory,
wherever located and whether now or hereafter existing, (including but not
limited to raw material and work in process, finished goods and materials
used or consumed in the manufacture or production thereof goods in which,
such person has an interest in mass or a joint or other interest or rights
of any kind, and goods which are returned to or repossessed by such person)
and all accessions thereto and, products thereof and documents therefor; (d)
all furniture, fixtures, machinery and equipment, wherever located and
whether now or hereafter existing, and all parts thereof, accessions
thereto, and replacements therefor and all documents and general intangibles
covering or relating thereto; (e) all books and records pertaining to the
foregoing, including but not limited to computer programs, data,
certificates, records circulation lists, subscriber lists, advertiser lists,
supplier lists, customer lists, customer and, supplier contracts, sales
orders and purchasing records; (f) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and any other designs or sources of business
identifiers, indicia of origin or similar devices, all registrations with
respect thereto, all, applications with respect to the foregoing, and all
extensions and renewals with respect to any of the foregoing, together with
all of the goodwill, associated therewith, in each case whether now or
hereafter existing, and all rights and interest associated, with the
foregoing; (g) all copyrights, and all copyrights of works based on,
incorporated in, derived from or relating to works covered by such
copyrights, and all right, title and interest to make and exploit all
derivative works based on or adopted from works covered by such copyrights,
all registrations with, respect thereto, all applications with respect to
the foregoing, and all extensions and renewals with respect to any of the
foregoing, together with all rights and interests associated with the
foregoing; (h) all patents, patent applications, and patentable inventions,
all continuations, divisions renewals, extensions, modifications,
substitutions, continuations-in-part, or reissues of any of the foregoing,
the right to xxx for past, present, and future infringements of any of the
foregoing, all income, royalties, profits, damages, awards, and payments
relating to or payable under any of the foregoing, and all other rights and
benefits relating to any of the foregoing throughout the world; and (i) all
supporting obligations and proceeds of the foregoing (collectively, the
"Collateral"). Each of PI, PINT and NTPCD agrees to comply with all
appropriate laws in order to perfect Purchaser's security interest in and to
the Collateral, to execute any additional documents as Purchaser may
require, to deliver to Purchaser a list of all locations of its inventory
and equipment and to obtain any landlord or mortgagee lien waivers that
Purchaser may require. Each of PI, PINT and NTPCD hereby authorizes
Purchaser to file any financing statements, continuations thereof,
amendments thereto or additional documents as Purchaser may require to
perfect its security interest in and to the Collateral. Each of PI, PINT and
NTPCD shall provide written notice to Purchaser of any change in the
locations at which it keeps its inventory and equipment at least 30 days
prior to any such change.
5. Effective Date. This Agreement shall become effective as of the
date first above written when, and only when, Purchaser shall have received,
at Purchaser's office, a counterpart of this Agreement executed and
delivered by PI, PINT and NTPCD and a counterpart of each of the other
documents, instruments and agreements listed on Exhibit A attached hereto,
each duly authorized, executed and delivered, and in form and substance
satisfactory to Purchaser.
6. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
representatives; successors and assigns.
7. Counterparts: Definitions. This Agreement may be executed, in any
number of counterparts, each of which shall be deemed an original, and all
of which shall constitute one and the same instrument. Any capitalized terms
used and not otherwise defined herein have the meanings given them in the
Original Agreement.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the date first above written.
PERFORMANCE INTERCONNECT CORP.
By: /s/ D Xxxxxx Xxxxx
___________________________
Name: D Xxxxxx Xxxxx
Title: President
NORTH TEXAS PC DYNAMICS, INC.
By: /s/ D Xxxxxx Xxxxx
___________________________
Name: D Xxxxxx Xxxxx
Title: President
PERFORMANCE INTERCONNECT CORP. OF NORTH
TEXAS, INC.
By: /s/ D Xxxxxx Xxxxx
___________________________
Name: D Xxxxxx Xxxxx
Title: President
FIDELITY FUNDING BUSINESS CREDIT LTD
dba USA FUNDING LTD.
By: /s/ Xxxxx X. Xxxxxxxx
___________________________
Xxxxx X. Xxxxxxxx
President, FFBC, Inc.
General Partner
