EXHIBIT 10.1
FIRST AMENDMENT TO AND REAFFIRMATION OF LOAN DOCUMENTS
FIRST AMENDMENT TO AND REAFFIRMATION OF LOAN DOCUMENTS (this "First
Amendment") made as of this 30th day of September, 1998 by and among ALPHANET
SOLUTIONS, INC., a New Jersey corporation (the "Company"), NETTEMPS, INC., a New
Jersey corporation (the "Guarantor") and FIRST UNION NATIONAL BANK, a national
banking institution (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank has agreed to make credit available to the Company on
a revolving basis in the principal amount of up to $15,000,000 (the "Loan"),
pursuant to the terms and conditions of a certain Loan and Security Agreement,
dated June 30, 1997 (as amended and reaffirmed by this First Amendment, the
"Loan Agreement"; all capitalized terms used herein and not defined shall have
the meanings ascribed to them therein); and
WHEREAS, the Loan is evidenced by a certain revolving note of the
Company dated June 30, 1997 (the "Exiting Revolving Note"); and
WHEREAS, as collateral security for its obligations under the Loan
Agreement and the Existing Revolving Note, the Company granted to the Bank liens
and security interests in the Collateral described in the Loan Agreement; and
WHEREAS, the repayment and performance obligations of the Company under
the Loan Agreement and the Existing Revolving Note were guaranteed by the
Guarantor under the Guaranty; and
WHEREAS, as collateral security for its obligations under the Loan
Agreement and the Guaranty, the Guarantor granted to the Bank liens and security
interests in the Collateral described in the Loan Agreement; and
WHEREAS, the Bank, the Company and the Guarantor have agreed that (a)
the Loan Agreement should be amended, among other things, to: (i) extend the
Maturity Date to September 28, 1999; (ii) modify the calculation of the
Commitment Fee; and (iii) amend certain of the definitions set forth therein;
and (b) the other Loan Documents shall be reaffirmed and amended to include the
amendments set forth in the Loan Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, the Bank, the Company and the Guarantor, do hereby agree as
follows:
1. By executing this First Amendment, each of the Company and the
Guarantor confirms and acknowledges that it has no defenses, offsets or
counterclaims against any of its obligations to the Bank under the Loan
Documents and that all
amounts outstanding, if any, under the Existing Revolving Note and the other
Loan Documents are owing to the Bank without defense, off-set or counterclaim.
2. A new Section 1.35A to the Loan Agreement is hereby added as
follows:
"FIRST AMENDMENT" means the First Amendment to and
Reaffirmation of Loan Documents, dated as of September 30, 1998, by and among
the Company, the Guarantor and the Bank.
3. Section 1.60 of the Loan Agreement is hereby amended to read as
follows:
"MATURITY DATE" means September 28, 1999.
4. Section 1.72 of the Loan Agreement is hereby amended to read as
follows:
"REVOLVING NOTE" means that certain Revolving Note dated
September 30, 1998 issued by Borrower evidencing the Loan and any revolving note
replacing such note."
5. Section 2.4(A) of the Loan Agreement is hereby amended to read as
follows:
"(A) Borrower agrees to pay to Bank on a quarterly basis the
Commitment Fee on the average daily unused portion of the Commitment from the
Closing Date until the Maturity Date, at a rate equal to one-eighth percent
(.125%) per annum, such payments commencing on September 30, 1998, and
continuing quarterly thereafter on the last day of December, March, June and
September, with such payments terminating on the Maturity Date."
6. The Company shall execute a new Revolving Note dated the date hereof
which shall supersede and replace (but not represent a repayment or novation of)
the Existing Revolving Note. The Revolving Note dated the date hereof shall be
the "Revolving Note" for all purposes of the Loan Agreement and the other Loan
Documents.
7. By executing this First Amendment, the Company and the Guarantor
confirm and acknowledge that (i) the representations and warranties contained in
Article V of the Loan Agreement (pertaining to each of them) are correct as of
the date hereof, (ii) the Company and the Guarantor are in compliance with all
covenants contained in the Loan Agreement and all other Loan Documents, and
(iii) no Event of Default, or an event which with the giving of notice or
passage of time or both would constitute an Event of Default, has occurred and
is continuing.
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8. All references to the "Agreement" or "this Agreement" in the Loan
Agreement shall mean the Loan Agreement, as amended and reaffirmed by this First
Amendment; all references to the "Guaranty" in the Loan Agreement shall be
deemed to mean the Guaranty, as amended and reaffirmed by this First Amendment;
and all references to the "Loan Documents" shall mean and include the Loan
Documents, as amended and reaffirmed by this First Amendment, as well as the
Revolving Note (as defined in the Loan Agreement, as amended by this First
Amendment). All references to the "Obligations" in the Loan Agreement shall mean
and include the obligations of the Company and the Guarantor to the Bank
pursuant to the Loan Documents, as amended and reaffirmed pursuant to this First
Amendment, including, but not limited to the Revolving Note (as defined in the
Loan Agreement, as amended by this First Amendment).
9. By executing this First Amendment, the parties hereto confirm the
continued accuracy of all Schedules and Exhibits attached to and made a part of
the Loan Agreement and the other Loan Documents. If any such Schedule or Exhibit
is no longer fully accurate or needs updating, such revised or updated Schedule
or Exhibit shall be delivered to the Bank as a condition precedent to the
effectiveness of this First Amendment and shall be deemed to replace the prior
Schedule or Exhibit for all purposes of the Loan Agreement or such other Loan
Document.
10. The Guaranty, effective the date hereof, is hereby amended to
provide that the term "Obligations" therein shall mean and include the
obligations of the Company to the Bank under the Loan Agreement and the other
Loan Documents, as each is amended and reaffirmed by this First Amendment, and
all references to the "Loan Agreement" and the "Loan Documents" in the Guaranty
shall mean and include such agreements, as amended and reaffirmed by, or
delivered pursuant to, this First Amendment. By executing this First Amendment,
the Guarantor reaffirms and acknowledges the validity of the Guaranty as of the
date hereof and confirms that it guarantees unconditionally the obligations of
the Company under the Revolving Note (as defined in the Loan Agreement, as
amended and reaffirmed by this First Amendment) and the other Loan Documents, as
amended and reaffirmed by this First Amendment.
11. By executing this First Amendment, each of the Company and the
Guarantor confirms the security interests previously granted to the Bank in and
to the Collateral described in the Loan Agreement as security for their
obligations under the Loan Documents (as defined in the Loan Agreement as
amended by this First Amendment), and each of the Company and the Guarantor
hereby grants to the Bank a security interest in the Collateral described in the
Loan Agreement to secure the repayment of their Obligations under the Revolving
Note (as defined in the Loan Agreement as amended by this First Amendment) and
Guaranty (as defined in the Loan Agreement as amended by this First Amendment),
as applicable, and the other Loan Documents, as amended and reaffirmed by this
First Amendment.
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12. As conditions precedent to the effectiveness of this First
Amendment, the following shall be delivered to the Bank by the Company and/or
the Guarantor:
(a) This First Amendment, duly executed by all parties hereto;
(b) The Revolving Note, duly executed by the Company;
(c) The Certification (as to jurisdiction of execution);
(d) A corporate resolution, incumbency certificate, and such other
documents as the Bank may reasonably request reflecting the corporate
authorization and approval of the transactions contemplated hereunder by the
Company and the Guarantor; and
(e) Such other documents as the Bank may reasonably request.
13. The Company and the Guarantor hereby covenant and agree to provide
the Bank with such current UCC, tax, judgment and litigation search reports as
the Bank deems necessary or advisable no later than October 31, 1998, all in
form and substance satisfactory to Bank.
14. This First Amendment is incorporated by reference into the Loan
Agreement and the other Loan Documents. Except as otherwise provided herein, all
other provisions of the Loan Agreement and the other Loan Documents are hereby
confirmed and ratified and shall remain in full force and effect as of the date
of this First Amendment.
15. This First Amendment may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute one and the
same instrument.
16. This First Amendment shall be binding upon the parties hereto and
their heirs, executors, administrators, successors and/or assigns.
17. This First Amendment shall be governed by, and construed in
accordance with, the laws of the State of New Jersey.
18. In the event any provision of this First Amendment or any other
Loan Document executed and delivered in connection herewith shall be held
invalid or unenforceable by a court of competent jurisdiction, such holdings
shall not invalidate or render unenforceable any other provision hereof or
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date first above written.
FIRST UNION NATIONAL BANK
By:
-------------------------------------
Name: Xxxxxxxxxxx X. XxXxxxxxxx
Title: Vice President
ATTEST: ALPHANET SOLUTIONS, INC.
By: By:
------------------------ -------------------------------------
Name: Name:
Title: Title:
ATTEST: NETTEMPS, INC.
By: By:
------------------------ -------------------------------------
Name: Name:
Title: Title:
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