AMENDMENT AND JOINDER TO CREDIT AGREEMENT
Exhibit
10.3
AMENDMENT
AND JOINDER TO CREDIT AGREEMENT
This
AMENDMENT AND JOINDER TO CREDIT AGREEMENT (“Amendment and
Joinder Agreement”), dated as of August 31, 2007, is made by and among
SELECT, INC., a Massachusetts corporation, having its chief
executive office located at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000
(“Select”), and CASTLE PINES CAPITAL LLC, a Delaware
limited liability company (“CPC”). Capitalized terms not defined herein
have the meanings given to them in the Credit Agreement (as defined
herein).
W
I T N E
S S E T H :
WHEREAS,
INX, Inc.(“INX”) is a party to that certain Amended and Restated Credit
Agreement dated as of April 30, 2007, as amended on August 1, 2007 (the
“Credit Agreement”); and
WHEREAS,
Select is currently a party to a certain Credit Agreement dated as of May 10,
2005 with CPC wherein Select granted a security interest in all of its assets
to
CPC (the “Existing Select Credit Agreement”); and
WHEREAS,
Select, as a result of the acquisition of all of it’s capital stock by INX, has
become a wholly-owned subsidiary of INX; and
WHEREAS,
Select desires to become a Reseller under the terms of the Credit
Agreement;
NOW,
THEREFORE, in consideration of the premises, the parties hereto hereby
agree as follows:
SECTION
ONE - Joinder. Select hereby acknowledges that it has received and
reviewed a copy of the Credit Agreement, and acknowledges and agrees
to:
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(a)
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join
the Credit Agreement as a Reseller (with the same effect as if initially
named therein), as indicated by its signature
below;
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(b)
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be
bound by all covenants, agreements, terms, conditions and acknowledgements
attributable to a Reseller in the Credit Agreement;
and
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(c)
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perform
all obligations and duties required of it by the Credit Agreement
as a
Reseller.
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SECTION
TWO – Continuation of Security Interest. Furthermore, in
connection with its joinder to the Credit Agreement, Select hereby acknowledges
(a) the continuing validity of that certain financing statement filed by CPC
in
the office of the Secretary of State of the State of Massachusetts, bearing
financing statement number 200538855530 in connection with the security interest
granted to CPC pursuant to the terms of the Existing Select Credit Agreement
(the “Select Financing Statement”); (b) acknowledges that the perfection
of the security interest granted to CPC in the Existing Select Credit Agreement
by the Select Financing Statement is intended to continue uninterrupted once
Select has joined the Credit Agreement via this Amendment and Joinder Agreement
and (c) further authorizes CPC to maintain the Select Financing Statement and
to
file amendments, modifications and extensions thereto.
SECTION
THREE –Amendments. The following amendments effective as of
the date hereof, subject to the satisfaction of the conditions set forth in
Section Three hereof:
A. Amendment
to Section 2. Section 2 of the Credit Agreement is amended by adding
the following sentence at the end of Section 2(h)(vii):
“Upon
agreeing to make an Acquisition Loan hereunder, CPC shall send Reseller a TS,
identifying the terms of each Acquisition Loan.”
B. Amendment
to Definitions. The definition of the term “Reseller” contained in
Section 25 of the Credit Agreement is hereby amended by deleting it in its
entirety and adding the following definition to Section 25:
““Reseller”
means INX and Select, a Massachusetts corporation and each other subsidiary
of
INX that may become party to this Agreement from time to time.”
C. Amendment
to Section 2. Section 2 of the Credit Agreement is amended by adding
the following new subsection (g) “Reseller Agent at the
end of the Section:
“(h)
Reseller Agent. Select hereby appoints INX as
“Reseller Agent.” Because the operations and business activities of the
Resellers are integrated and interdependent, at any particular time it is
impractical to determine which of the Resellers will directly receive the
proceeds of a Financed Inventory advance or a Revolving Credit
Loan. Each of the Resellers hereby directs CPC to disburse the
proceeds of each Financed Inventory advance or Revolving Credit Loan to or
at
the direction of the Reseller Agent, with such directions to be subject to
approval of CPC in its discretion, and such distribution will, in all
circumstances, be deemed to be made to each of the Resellers. From
time to time, Reseller Agent shall further distribute the proceeds of Revolving
Credit Loans to a particular Reseller or Resellers, jointly and severally,
or
direct the disbursement of the Financed Inventory advance for the account of
each Reseller, and each Reseller represents and warrants that the subsequent
receipt and use of such proceeds by any particular Reseller inures to the
economic benefit directly and indirectly of all other Resellers. For
so long as the Line of Credit is in effect, each Reseller hereby covenants
and
agrees, and hereby grants to the Reseller Agent an absolute and irrevocable
power of attorney coupled with interest, and irrevocably designates, appoints,
authorizes and directs the Reseller Agent to (a) execute and deliver any
Borrowing Bases, (b) certify the financial statements of Reseller, (c) request
advances, and execute and deliver written requests for advances, (d) make any
other deliveries required to be delivered periodically hereunder to CPC, and
(e)
otherwise take all other actions otherwise contemplated by this Section, and
to
act on behalf of such Reseller for purposes of giving and receiving notices
and
certificate ions under this Credit Agreement or any other document related
to
this Credit Agreement. CPC is entitled to rely and act on the
instructions of the Reseller Agent.”
SECTION
FOUR – Conditions to Effectiveness. This Amendment shall
become effective as of the date first above written provided:
A. CPC
has received counterparts of this Amendment executed by both Resellers
immediately following the acquisition by INX of Select;
B.
As of
the date first above written, no event shall have occurred since August 1,
2007,
which has a material adverse effect on the business, assets, revenues, financial
condition or Collateral of INX, the ability of INX to perform its payment
obligations when due or to perform any other material obligation under the
Credit Agreement; or any right, remedy or benefit of CPC under the Credit
Agreement; and
C. CPC
has received such other certificates, resolutions, agreements, documents and
information as requested by CPC and its counsel.
In
addition, the effectiveness of this Amendment is conditioned upon the continuing
accuracy of the representations and warranties set forth in Section Four
hereof.
SECTION
FIVE – Representations and Warranties. In order to induce
CPC to enter into this Amendment, INX represents and warrants to CPC that (i)
the Credit Agreement, as amended, does remain the legal, valid, enforceable
and
binding obligation of each Reseller, (ii) no Default has occurred and is
continuing, (iii) all of the representations and warranties in the Credit
Agreement are true and complete in all material respects on and as of the date
hereof as if made on the date hereof (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such specific
date), and (iv) neither Reseller has any claims, defenses, or offsets against
CPC.
SECTION
SIX – Miscellaneous. INX waives notice of CPC’s acceptance
of this addendum. All other terms and provisions of the Credit
Agreement, to the extent not inconsistent with the foregoing, are ratified
and
remain unchanged and in full force and effect.
SECTION
SEVEN – Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to
this Amendment by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION
EIGHT – Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of Colorado (without
giving effect to any provisions thereof relating to conflicts of
law).
THIS
AMENDMENT AND JOINDER AGREEMENT AND THE CREDIT AGREEMENT CONTAIN BINDING
ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS.
(Signature
Page(s) to Follow)
IN
WITNESS WHEREOF, each of the undersigned has caused this Amendment and Joinder
Agreement to be duly executed and delivered by its proper and duly authorized
officer as of the date set forth below.
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Dated:
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August
31, 2007
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INX,
INC.
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RESELLER
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/s/
Xxxxx X. Xxxx
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Xxxxx
X. Xxxx
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Chairman
& Chief Executive Officer
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SELECT,
INC.
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RESELLER
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/s/
Xxxx Xxxx
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Xxxx
Xxxx
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President
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ACKNOWLEDGED
AND AGREED TO:
CASTLE
PINES CAPITAL LLC
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By:/s/
Xxxx Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title: Managing
Partner
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