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EXHIBIT 10.1
AMENDMENT NUMBER TWO
TO LOAN AND SECURITY AGREEMENT
AND WAIVER AND CONSENT
This AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT AND
WAIVER AND CONSENT (the "Amendment") is entered into as of April 20, 2001, by
and among FOOTHILL CAPITAL CORPORATION, a California corporation ("Lender"),
FUTURELINK CORP., a Delaware corporation ("Parent"), and each of Parent's
Subsidiaries identified on the signature pages hereof (such Subsidiaries,
together with Parent, each a "Borrower" and collectively, jointly and severally,
the "Borrowers"), with reference to the following:
WHEREAS, Borrowers have previously entered into that certain Loan
and Security Agreement, dated as of November 16, 2000 (as amended by that
certain Amendment Number One to Loan and Security Agreement, dated as of
December 14, 2000, as further amended, restated, supplemented, or otherwise
modified from time to time, the "Loan Agreement"), with Lender, pursuant to
which Lender has made certain loans and financial accommodations available to
Borrowers;
WHEREAS, Borrowers have requested that Lender (1) amend the Loan
Agreement to, among other things, provide for a temporary overadvance and
consent to Borrowers incurring additional Indebtedness, and (2) waive certain
Events of Default, all as set forth in more detail herein;
WHEREAS, subject to the terms and conditions set forth herein,
Lender is willing to (1) so amend the Loan Agreement, and (2) waive certain
Events of Default, all as set forth in more detail herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendments to the Loan Agreement.
(a) The following new definitions hereby are added in their
entirety to Section 1.1 of the Loan Agreement, in alphabetical order:
"Canadian Advance Date" means the date of the first Advance
that is made on or after April 23, 2001 against Eligible Canadian
Accounts or Canadian Obligors' Collections.
"EBITDA" means, with respect to any fiscal period, Parent's
and its Subsidiaries consolidated net earnings (or loss), minus
extraordinary gains, plus extraordinary losses, interest expense,
the amount of any banking or credit facility fees or charges
(including the Second Amendment Closing Fee), income taxes, and
depreciation and amortization for such period, as determined in
accordance with GAAP.
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"Maturity Date" has the meaning set forth in Section 3.4.
"Pequot Documents" means (a) the Pequot Promissory Note,
(b) that certain Security Agreement, dated as of April 20, 2001,
and executed by and among Pequot Private, the Borrowers, and the
Canadian Obligors, (c) the Pequot Guaranty, and (d) the Pequot
Subordination Agreement.
"Pequot Guaranty" means that certain Guaranty, dated as of
April 20, 2001, and issued by each of the Borrowers (except
Parent) and the Canadian Obligors in favor of Pequot Private in
form and substance satisfactory to Lender in its sole discretion.
"Pequot Indebtedness" means Subordinated Debt in the
principal amount of up to $5,000,000 evidenced by the Pequot
Promissory Note.
"Pequot Private" means Pequot Private Equity Fund II, L.P.,
a Delaware limited partnership.
"Pequot Private Lien" means the lien evidenced by the
Pequot Security Agreement.
"Pequot Promissory Note" means that certain Secured
Subordinated Convertible Promissory Note, dated as of April 20,
2001, issued by Parent in favor of Pequot Private in form and
substance satisfactory to Lender in its sole discretion.
"Pequot Security Agreement" means that certain Security
Agreement, dated as of April 20, 2001, and executed by and among
Pequot Private, the Borrowers, and the Canadian Obligors in form
and substance satisfactory to Lender in its sole discretion.
"Pequot Subordination Agreement" means that certain Pequot
Subordination Agreement, dated as of April 20, 2001, and executed
between Lender and Pequot Private in form and substance
satisfactory to Lender in its sole discretion.
"Permitted Overadvance Amount" means, as of any date of
determination between April 1, 2001, and April 15, 2001, an amount
that shall not exceed $500,000.
"Revenues" means, with respect to any fiscal period, 100%
of Parent's and its Subsidiaries' revenues that would be treated
as revenues under GAAP.
"Second Amendment" means that certain Amendment Number Two
to Loan and Security Agreement, dated as of April 20, 2001, by and
among the Borrowers and Lender.
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"Second Amendment Closing Date" means the date that the
Second Amendment initially became effective by its terms.
"Second Amendment Closing Fee" has the meaning set forth in
Section 2.11(d) hereof.
(b) The following definitions set forth in Section 1.1 of the Loan
Agreement hereby are amended and restated in their entirety as follows:
"Base Rate Margin" means 2.0 percentage points.
"Eligible Accounts" means the Eligible Borrower Accounts
and the Eligible Canadian Accounts.
"Maximum Canadian Advance Amount" means $2,000,000.
"Maximum Revolver Amount" means the result of (a)
$25,000,000, minus (b) the then extant amount of the UK Loan
Usage.
"Maximum UK Loan Amount" means $1,700,000.
"Obligations" means all loans, Advances, debts, principal,
interest (including any interest that, but for the provisions of
the Bankruptcy Code, would have accrued), contingent reimbursement
obligations with respect to outstanding Letters of Credit,
premiums, liabilities (including all amounts charged to Borrowers'
Loan Account pursuant hereto), obligations, fees (including the
Second Amendment Closing Fee and the fees provided for in the Fee
Letter), charges, costs, Lender Expenses (including any fees or
expenses that, but for the provisions of the Bankruptcy Code,
would have accrued), lease payments, guaranties, covenants, and
duties of any kind and description owing by Borrowers to Lender
pursuant to or evidenced by the Loan Documents and irrespective of
whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter arising, and including all interest not paid when due
and all Lender Expenses that Borrowers are required to pay or
reimburse by the Loan Documents, by law, or otherwise. Any
reference in this Agreement or in the Loan Documents to the
Obligations shall include all amendments, changes, extensions,
modifications, renewals replacements, substitutions, and
supplements, thereto and thereof, as applicable, both prior and
subsequent to any Insolvency Proceeding.
(c) The definition of Permitted Lien hereby is amended by (i)
deleting the "and" appearing immediately before subsection (k) of such Section,
(ii) replacing the period at the end of subsection (k) appearing in such Section
with the text "; and", and (iii) adding the following new subsection (l)
immediately after subsection (k) of such Section:
(l) the Pequot Private Lien.
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(d) The definitions of "Applicable Prepayment Premium," "ASP
Dilution (Citrix)," "ASP Dilution (Non-Citrix)," "ASP Dilution Reserve
(Citrix)," "ASP Dilution Reserve (Non-Citrix)," "Eligible ASP Accounts,"
"Eligible Citrix Accounts," "Eligible Non-Citrix Accounts," and "Renewal Date"
set forth in Section 1.1 of the Loan Agreement hereby are deleted in their
entirety.
(e) Section 1.4 of the Loan Agreement hereby is amended by adding
the following sentence to the end of such Section:
Any number contained within the symbol "< >" shall
constitute a negative number.
(f) Section 2.1(a) of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
2.1 REVOLVER ADVANCES.
(a) Subject to the terms and conditions of this Agreement,
and during the term of this Agreement, Lender agrees to make
advances ("Advances") to Borrowers in an amount at any one time
outstanding not to exceed an amount equal to the lesser of (i) the
then extant Maximum Revolver Amount less $10,000,000 less the
Letter of Credit Usage, or (ii) the Borrowing Base less the Letter
of Credit Usage. For purposes of this Agreement, "Borrowing Base,"
as of any date of determination, shall mean the result of:
(v) the lesser of
(i) 85% of the amount of Eligible
Borrower Accounts, less the amount, if any,
of the Dilution Reserve, and
(ii) an amount equal to Borrowers'
Collections with respect to Accounts for a
period immediately preceding the date of
determination to be determined by Lender in
its Permitted Discretion following Borrowers'
compliance with Section 3.2(b), plus
(w) from and after the date of the completion of the
Canadian Borrowing Base Conditions, through and including (but not
after) the date of the consummation of the Permitted Canadian
Disposition, the least of
(i) 70% of the amount of Eligible
Canadian Accounts, less the amount, if any,
of the Canadian Dilution Reserve, and
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(ii) an amount equal to the Canadian
Obligors' Collections with respect to their
accounts for a period immediately preceding
the date of determination to be determined by
Lender based upon the results of Lender's
audit, appraisal, and standard due diligence
of the Canadian Obligors, and
(iii) the Maximum Canadian Advance
Amount, minus
(x) the aggregate amount of reserves, if any,
established by Lender under Section 2.1(b), plus
(y) the then extant Permitted Overadvance Amount.
(g) Section 2.7(d) of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
(d) Each Canadian Cash Management Bank shall establish and
maintain Cash Management Agreements with Lender and the relevant
Canadian Obligor, in form and substance acceptable to Lender. Each
such Canadian Cash Management Agreement shall provide, among other
things, that (i) all items of payment deposited in such Canadian
Cash Management Account and proceeds thereof are held by such
Canadian Cash Management Bank on behalf of Lender or
bailee-in-possession for Lender, (ii) the Canadian Cash Management
Bank has no rights of setoff or recoupment or any other claim
against the applicable Canadian Cash Management Account, other
than for payment of its service fees and other charges directly
related to the administration of such Canadian Cash Management
Account and for returned checks or other items of payment, and
(iii) from and after the receipt by the applicable Canadian Cash
Management Bank of a notice that a Triggering Event has occurred,
it immediately will forward by daily sweep all amounts in the
applicable Canadian Cash Management Account to the Lender's
Account. From April 20, 2001 until the earlier to occur of (i) the
Canadian Advance Date, (ii) written notice from Lender to
Administrative Borrower that all of the Canadian Borrowing Base
Conditions have been satisfied or waived, or (iii) an Event of
Default, Lender shall instruct the Canadian Cash Management Bank
to transfer, once per Business Day, by wire of immediately
available funds the converted collected balance in excess of
$10,000 in the Canadian Cash Management Account to an account
designated by Administrative Borrower.
(h) Section 2.11 of the Loan Agreement hereby is amended to add
the following new subsection (d) immediately below subsection (c) appearing in
such Section:
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(d) SECOND AMENDMENT CLOSING FEE. Borrowers shall pay
Lender, in cash, an amendment, waiver, and consent fee in the
amount of $500,000 (the "Second Amendment Closing Fee"), which fee
(i) is fully earned and payable as of the Second Amendment Closing
Date, (ii) shall constitute Obligations under the Loan Agreement
(but shall not reduce Availability), (iii) shall accrue interest
pursuant to the terms of the Loan Agreement, and (iv) shall be
charged to Borrowers' Loan Account; provided, however, that in the
event that, pursuant to Section 3.6 of the Loan Agreement,
Borrowers terminate the Loan Agreement by paying to Lender, in
cash, the Obligations (including either (I) providing cash
collateral to be held by Lender in an amount equal to 105% of the
then extant Letter of Credit Usage, or (II) causing the original
Letters of Credit to be returned to Lender), in full, on or prior
to one of the dates set forth in the following table, Lender shall
refund to Borrowers the portion of the Second Amendment Closing
Fee that is set forth opposite the date by which all such
Obligations are paid:
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DATE REFUND AMOUNT
------------------------------------------------------------------------
June 30, 2001 $250,000 (exclusive of any interest, fees, or
other charges accrued on or attributed to such
amount)
------------------------------------------------------------------------
July 31, 2001 $200,000 (exclusive of any interest, fees, or
other charges accrued on or attributed to such
amount)
------------------------------------------------------------------------
August 31, 2001 $150,000 (exclusive of any interest, fees, or
other charges accrued on or attributed to such
amount)
------------------------------------------------------------------------
September 30, 2001 $100,000 (exclusive of any interest, fees, or
other charges accrued on or attributed to such
amount)
------------------------------------------------------------------------
October 31, 2001 $0 (exclusive of any interest, fees, or other
charges accrued on or attributed to such amount)
------------------------------------------------------------------------
(i) Section 2.12(a)(ii) of the Loan Agreement hereby is amended
and restated in its entirety to read as follows:
(ii) the Letter of Credit Usage would exceed $1,000,000, or
(j) Section 3.4 of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
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3.4 TERM. This Agreement shall become effective upon the
execution and delivery hereof by Borrowers and Lender and shall
continue in full force and effect for a term ending on November
30, 2001 (the "Maturity Date"). The foregoing notwithstanding,
Lender shall have the right to terminate its obligations under
this Agreement immediately and without notice upon the occurrence
and during the continuation of an Event of Default.
(k) Section 3.6 of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
3.6 EARLY TERMINATION BY BORROWERS. Borrowers have the
option, at any time upon 30 days prior written notice by
Administrative Borrower to Lender, to terminate this Agreement by
paying to Lender, in cash, the Obligations (including either (i)
providing cash collateral to be held by Lender in an amount equal
to 105% of the then extant Letter of Credit Usage, or (ii) causing
the original Letters of Credit to be returned to Lender), in full.
If Administrative Borrower has sent a notice of termination
pursuant to the provisions of this Section, then Lender's
obligations to extend credit hereunder shall terminate and
Borrowers shall be obligated to repay the Obligations (including
either (i) providing cash collateral to be held by Lender in an
amount equal to 105% of the then extant Letter of Credit Usage, or
(ii) causing the original Letters of Credit to be returned to
Lender), in full, on the date set forth as the date of termination
of this Agreement in such notice. The foregoing to the contrary
notwithstanding, Borrowers shall not have the right to terminate
this Agreement unless the UK Loan Agreement concurrently is
terminated and all of the Indebtedness thereunder repaid in full.
(l) Section 3.7 of the Loan Agreement hereby is deleted in its
entirety.
(m) Section 6 of the Loan Agreement hereby is amended by adding
the following Section 6.16 directly below Section 6.15:
6.16 SUBORDINATED DEBT OR EQUITY. Furnish to Lender (i) not
later than May 31, 2001, evidence satisfactory to Lender in its
sole discretion that Parent has received cash from Subordinated
Debt or the sale of Stock of at least $5,000,000 on terms
satisfactory to Lender in its sole discretion, and (ii) not later
than June 30, 2001, evidence satisfactory to Lender in its sole
discretion that Parent has received cash from Subordinated Debt or
the sale of Stock of at least $5,000,000 such that the total cash
from Subordinated Debt or the sale of Stock received by Parent as
of such date equals or exceeds $10,000,000; provided, however,
that a portion of the total cash received by Parent from the
Subordinated Debt or the sale of Stock may be funded through the
cash received by Parent from the Pequot Indebtedness.
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(n) Section 6.2(h) of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
(h) a calculation of Dilution and Canadian Dilution for the
prior month, and
(o) Section 7.1 of the Loan Agreement hereby is amended by (i)
deleting the word "and" appearing in subsection (f) of such Section, (ii)
replacing the period in subsection (g) of such Section with a semicolon, and
(iii) adding the following subsection (h) directly below subsection (g)
appearing in said Section:
(h) the Pequot Indebtedness.
(p) Section 7.6(b) of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
(b) the UK Guaranty, the Canadian Guaranty, and the Pequot
Guaranty.
(q) Section 7.14 of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
7.14 TRANSACTIONS WITH AFFILIATES. Directly or indirectly
enter into or permit to exist any transaction with any Affiliate
of any Borrower except for (a) transactions that are in the
ordinary course of Borrowers' or the applicable Subsidiary's
business, upon fair and reasonable terms, that are fully disclosed
to Lender, and that are no less favorable to Borrowers or the
applicable Subsidiary than would be obtained in an arm's length
transaction with a non-Affiliate, and (b) the transaction
evidenced by the Pequot Documents.
(r) Section 7.20(a) of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
(a) Fail to maintain:
(i) TANGIBLE NET WORTH. Tangible Net Worth of at
least the required amount set forth in the following table
as of the applicable date set forth opposite thereto:
-----------------------------------------------------
APPLICABLE AMOUNT APPLICABLE DATE
-----------------------------------------------------
$1,750,000 May 31, 2001
-----------------------------------------------------
$6,550,000 June 30, 2001
-----------------------------------------------------
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$5,450,000 July 31, 2001
-----------------------------------------------------
$4,350,000 August 31, 2001
-----------------------------------------------------
$3,650,000 September 30, 2001
-----------------------------------------------------
$3,150,000 October 31, 2001
-----------------------------------------------------
$2,650,000 November 30, 2001
-----------------------------------------------------
(ii) MINIMUM REVENUES. Revenues of at least the
required amount set forth in the following table for the
fiscal month ended as of the applicable date set forth
opposite thereto:
-----------------------------------------------------
APPLICABLE AMOUNT APPLICABLE DATE
-----------------------------------------------------
$10,211,120 May 31, 2001
-----------------------------------------------------
$11,643,875 June 30, 2001
-----------------------------------------------------
$11,852,790 July 31, 2001
-----------------------------------------------------
$11,879,521 August 31, 2001
-----------------------------------------------------
$12,488,241 September 30, 2001
-----------------------------------------------------
$12,670,886 October 31, 2001
-----------------------------------------------------
$12,764,955 November 30, 2001
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(iii) MINIMUM EBITDA. EBITDA of not less than the
required amount set forth in the following table for the
fiscal month ended as of the applicable date set forth
opposite thereto:
-----------------------------------------------------
MINIMUM EBITDA AMOUNT APPLICABLE PERIOD
-----------------------------------------------------
< $670,208 > May 31, 2001
-----------------------------------------------------
< $552,354 > June 30, 2001
-----------------------------------------------------
< $190,891 > July 31, 2001
-----------------------------------------------------
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< $165,613 > August 31, 2001
-----------------------------------------------------
$156,489 September 30, 2001
-----------------------------------------------------
$339,664 October 31, 2001
-----------------------------------------------------
$360,469 November 30, 2001
-----------------------------------------------------
(s) Section 8 of the Loan Agreement hereby is amended and restated
in its entirety to add the following new Section 8.17 immediately below Section
8.16:
8.17 If there is a default in any of the Pequot Documents.
(t) Schedule 2.7(c) of the Loan Agreement hereby is replaced in
its entirety with the amended and restated Schedule 2.7(c) that is attached
hereto.
2. Waivers.
(a) Borrowers acknowledge that certain unwaived Events of Default
may have occurred. The Events of Default currently known to Lender that may have
occurred and be continuing and to be anticipated to occur within the two weeks
following execution of this Amendment are the following (the "Designated Events
of Default"):
(i) Borrowers anticipate that they will fail to maintain
Tangible Net Worth of at least $17,000,000 as of April 30, 2001, as is
required by Section 7.20(a)(i) of the Loan Agreement;
(ii) As of April 1, 2001, Borrowers may have had an
Overadvance in violation of Section 2.5 of the Loan Agreement; and
(iii) Borrowers' failure to obtain certain third party
consents under certain material agreements that may have been required in
connection with the consummation of the transactions contemplated by the
Pequot Documents.
(b) Anything in the Loan Agreement to the contrary and subject to
the fulfillment by Borrowers of each of the conditions precedent set forth in
this Amendment, Lender hereby waives any Event of Default that may have been
occasioned solely as a result of the Designated Events of Default.
(c) Borrowers have further advised Lender that in violation of
Sections 5.17, 6.6, and 8.9 of the Loan Agreement,
(i) Borrowers are in material default with respect to that
certain lease agreement, dated April 27, 2000, between FutureLink Corp.
and GATX Technology Services Corporation, in that FutureLink Corp. has
failed to pay the monthly rental
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charge in the amount of $69,180.41 for each of the months ended March 31,
2001 and April 30, 2001;
(ii) Borrowers are in material default with respect to that
Master Loan and Security Agreement, dated November 3, 1999, among
TransAmerica Business Credit Corporation, FutureLink Distribution Corp.,
and FutureLink Micro Visions Corp. and that certain Security Agreement,
dated November 3, 1999, between TransAmerica Business Credit Corporation
and FutureLink Distribution Corp. in that FutureLink Distribution Corp.
and FutureLink Micro Visions Corp. have failed to pay the monthly rental
charge in the amount of $69,799.97 for the month ended April 30, 2001;
and
(iii) Borrowers are in material default with respect to (a)
the portion of that certain lease agreement number 12035 between EMC2 and
FutureLink Corp. (the "Master Lease") that has been assigned to Fleet
Capital Leasing in that FutureLink Corp. has failed to pay to Fleet
Capital Leasing the monthly rental charge in the amount of $137,785.98
for each of the months ended March 31, 2001 and April 30, 2001, and (b)
the portion of the Master Lease that has been assigned to De Xxxx Xxxxxx
Financial Services, Inc. in that FutureLink Corp. has failed to pay to De
Xxxx Xxxxxx Financial Services, Inc. the monthly rental charge in the
amount of $94,872.28 for each of the months ended March 31, 2001 and
April 30, 2001.
Anything in the Loan Agreement to the contrary notwithstanding, and subject to
the fulfillment by Borrowers of each of the conditions precedent set forth in
this Amendment, Lender hereby waives any Events of Default that may have been
occasioned solely by (a) Borrowers' failure to pay the lease payments that are
specifically enumerated in this Section 2(c) by the dates that such lease
payments were or are due, and (b) Borrowers' failure to pay the monthly rental
charges that become due under the lease agreements that are specifically
enumerated in this Section 2(c) on or before June 30, 2001. The foregoing waiver
shall not (a) operate as a waiver of Borrowers' obligation to pay the lease
payments, or (b) operate as a waiver of any Event of Default that may be
occasioned by any lessor taking any remedial action against any Borrower or any
of its Subsidiaries that impairs the operations of Borrower or any of its
Subsidiaries to be determined by Foothill in its sole discretion.
3. Conditions Precedent. The satisfaction of each of the following,
unless waived or deferred by Lender in its sole discretion, shall constitute
conditions precedent to the effectiveness of this Amendment and each and every
provision hereof:
(a) Lender shall have received this Amendment, duly executed by
the parties hereto, and the same shall be in full force and effect;
(b) The representations and warranties in this Amendment, the Loan
Agreement as amended by this Amendment, and the other Loan Documents shall be
true and correct in all respects on and as of the date hereof, as though made on
such date (except to the extent that such representations and warranties relate
solely to an earlier date);
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(c) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof, nor shall
result from the consummation of the transactions contemplated herein;
(d) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against any Borrower or Lender;
(e) Lender shall have received the reaffirmation and consent
attached hereto as Attachment "A," duly executed and delivered by an authorized
official of each of the Canadian Obligors; and
(f) Borrowers shall have delivered to Lender a copy of each of the
Pequot Documents, together with all exhibits and schedules thereto, and each of
the Pequot Documents shall be in form and substance satisfactory to Lender in
its sole discretion.
4. Conditions Subsequent. As conditions subsequent to the continuing
effectiveness of this Amendment, and the waivers, consents, and amendments
contained herein, Borrowers shall perform or cause to be performed the following
(the failure of Borrowers to so perform or cause to be performed constituting an
Event of Default):
(a) Lender shall have received, not later than June 30, 2001, (i)
a copy of the form of letter, or other writing, that Borrowers have executed and
sent to each of their Account Debtors pursuant to which Borrowers have requested
that all of their Account Debtors forward payment of the amount owed by them
directly to the US Cash Management Account at the US Cash Management Bank, (ii)
the list of customers to whom such letter, or other writing, was sent, and (iii)
a certificate signed by an officer of Administrative Borrower to the effect that
each and every letter was sent to the applicable Account Debtor by United States
mail, postage prepaid, or by overnight mail, with delivery fees paid;
(b) Lender and its counsel shall have received, not later than
9:00 a.m. on June 29, 2001, evidence, satisfactory to Lender in its sole
discretion, that Borrowers have cured the material defaults described in Section
2(c) hereof with respect to each and every lease agreement described in such
Section; and
(c) Borrowers shall have delivered to Lender, not later than 10
days after the execution of this Amendment, fully executed copies of the Pequot
Documents.
5. Representations and Warranties. Each Borrower hereby represents and
warrants to Lender that (a) the execution, delivery, and performance of this
Amendment and of the Loan Agreement, as amended by this Amendment, are within
such Borrower's powers, have been duly authorized by all necessary action, and
are not in contravention of any law, rule, or regulation, or any order,
judgment, decree, writ, injunction, or award of any arbitrator, court, or
Governmental Authority, or of the terms of its Governing Documents, or of any
contract or undertaking to which it is a party or by which any of its properties
may be bound or affected, (b) this Amendment and the Loan Agreement, as amended
by this Amendment, constitute such
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Borrower's legal, valid, and binding obligation, enforceable against such
Borrower in accordance with its terms, and (c) this Amendment has been duly
executed and delivered by such Borrower.
6. Choice of Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the laws of the
State of California.
7. Counterparts; Telefacsimile Execution. This Amendment may be executed
in any number of counterparts and by different parties and separate
counterparts, each of which when so executed and delivered, shall be deemed an
original, and all of which, when taken together, shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to this
Amendment by telefacsimile shall be effective as delivery of a manually executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile also shall deliver a manually executed
counterpart of this Amendment but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment.
8. Effect on Loan Documents.
(a) The Loan Agreement, as amended hereby, and the other Loan
Documents shall be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects. The
execution, delivery, and performance of this Amendment shall not, except as
expressly set forth herein, operate as a waiver of or, except as expressly set
forth herein, as an amendment of, any right, power, or remedy of Lender under
the Loan Agreement, as in effect prior to the date hereof. The waivers,
consents, and modifications herein are limited to the specifics hereof, shall
not apply with respect to any facts or occurrences other than those on which the
same are based, shall not excuse future non-compliance with the Loan Agreement,
and shall not operate as a consent to any further or other matter, under the
Loan Documents.
(b) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Loan Agreement, and each
reference in the other Loan Documents to "the Agreement", "thereunder",
"therein", "thereof" or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as modified and amended
hereby.
(c) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or conditions of the
Loan Agreement, after giving effect to this Amendment, such terms and conditions
are hereby deemed modified or amended accordingly to reflect the terms and
conditions of the Loan Agreement as modified or amended hereby.
9. Further Assurances. Each Borrower shall execute and deliver all
agreements, documents, and instruments, in form and substance satisfactory to
Lender, and take all actions as Lender may reasonably request from time to time,
to perfect and maintain the perfection and
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priority of Lender's security interests in the Collateral and to fully
consummate the transactions contemplated under this Amendment and the Loan
Agreement, as amended by this Amendment.
10. Entire Agreement. This Amendment, together with all other
instruments, agreements, and certificates executed by the parties in connection
herewith or with reference thereto, embody the entire understanding and
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings,
and inducements, whether express or implied, oral or written.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have entered into this Amendment
as of the date first above written.
FUTURELINK CORP., a Delaware corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
FUTURELINK MICRO VISIONS CORP., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
FUTURELINK ASYNC CORP., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
FUTURELINK PLEASANTON CORP., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
FUTURELINK MADISON CORP., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
FUTURELINK VSI CORP., a Maryland corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
[signatures pages continue]
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FOOTHILL CAPITAL CORPORATION, a California
corporation
By: /s/ XXXX XXXXXX
--------------------------------------
Title: Vice President, Senior Account
Executive
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Schedule 2.7(c)
The Bank of Nova Scotia
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Telephone: (000) 000-0000
Foothill's account number 800021273019
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ATTACHMENT "A"
REAFFIRMATION AND CONSENT
All capitalized terms used herein shall have the meanings ascribed
to them in that certain Amendment Number Two to Loan and Security Agreement and
Waiver and Consent, dated as of April 20, 2001 (the "Amendment"). The
undersigned hereby (a) represents and warrants to Lender that the execution,
delivery, and performance of this Reaffirmation and Consent are within its
corporate powers, have been duly authorized by all necessary corporate action,
and are not in contravention of any law, rule or regulation, or any order,
judgment, decree, writ, injunction, or award of any arbitrator, court, or
governmental authority, or of the terms of its charter or bylaws, or of any
contract or undertaking to which it is a party or by which any of its properties
may be bound of affected; (b) consents to the amendments of the Loan Agreement
as amended by the Amendment; (c) acknowledges and reaffirms its obligations
owing to Lender under the Canadian Guaranty (as defined in the Loan Agreement)
and any other Loan Documents (as defined in the Loan Agreement) to which it is a
party; and (d) agrees that each of the Canadian Guaranty (as defined in the Loan
Agreement) and any other Loan Documents (as defined in the Loan Agreement) to
which it is a party is and shall remain in full force and effect.
Although the undersigned has been informed of the matters set
forth herein and has acknowledged and agreed to same, it understands that Lender
has no obligations to inform it of such matters in the future or to seek its
acknowledgement or agreement to future amendments, and nothing herein shall
create such a duty. Delivery of an executed counterpart of this Reaffirmation
and Consent by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Reaffirmation and Consent. Any party
delivering an executed counterpart of this Reaffirmation and Consent by
telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent.
3045207 NOVA SCOTIA COMPANY, a company
organized under the laws of Nova Scotia
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
1423280 ONTARIO INC., a company organized
under the laws of Ontario
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
[signature pages continue]
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FUTURELINK CANADA CORP., a company organized
under the laws of Ontario
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: President and Chief Executive Officer
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