EXHIBIT 10.2
FOURTH AMENDMENT, CONSENT, WAIVER AND RELEASE
THIS FOURTH AMENDMENT, CONSENT, WAIVER AND RELEASE (the "AGREEMENT") dated
as of October 26, 1998, is to that Credit Agreement dated as of January 24, 1996
as amended by that First Amendment to Credit Agreement dated as of May 15, 1996,
as further amended and modified by that Second Amendment to Credit Agreement
dated as of March 14, 1997, as further amended and modified by that Third
Amendment to Credit Agreement dated as of August 12, 1997 (as amended and
modified hereby and as further amended and modified from time to time hereafter,
the "CREDIT AGREEMENT"; terms used but not otherwise defined herein shall have
the meanings assigned in the Credit Agreement), by and among ▇▇▇▇▇ SYSTEMS,
INC., a Delaware corporation (the "BORROWER"), THOSE SUBSIDIARIES AND CREDIT
PARTIES party thereto and identified on the signature pages hereof (together
with the Borrower sometimes being referred to as the "CREDIT PARTIES"), as
Guarantors and Credit Parties, the Lenders party thereto, and NATIONSBANK, N.A.,
as Agent (the "AGENT").
W I T N E S S E T H
WHEREAS, the Lenders have, pursuant to the terms of the Credit Agreement,
made available to the Borrower a $30,000,000 credit facility;
WHEREAS, the Borrower has requested that the Lenders consent to its
distribution of all of the outstanding shares of common stock of ▇▇▇▇▇▇
Software International, Inc. to the Parent, the sole stockholder of the Borrower
(the "SPIN-OFF");
WHEREAS, the Lenders have agreed to consent to the Spin-Off on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
A. OTHER DEFINITIONS. Unless the context otherwise requires, the
following terms used in this Agreement shall have the indicated definitions:
"CONSENT SOLICITATION STATEMENT" means the Consent Solicitation
Statement of the Borrower, dated July 24, 1998, (the "Original Consent
Solicitation Statement") provided to the holders of Subordinated Notes in
connection with the solicitation by the Borrower of consent of such holders
to the Indenture Amendment, as modified by the Supplement thereto dated
September 25, 1998 (the "Supplement").
"INDENTURE AMENDMENTS" means the amendments to and modifications of
the Indenture set forth in Annex A to the Original Consent Solicitation
Statement, as modified by
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Annex A to the Supplement, and contained in the First Supplemental
Indenture dated as of September 30, 1998 to the Indenture (the "FIRST
SUPPLEMENTAL INDENTURE").
"▇▇▇▇▇▇ COMPANIES" means ▇▇▇▇▇▇ and its Subsidiaries.
B. AMENDMENTS. Subject to the satisfaction of the conditions set forth in
Section C below, the Credit Agreement is amended as follows:
1. The following definitions are hereby added to Section 1.1 of the
Credit Agreement in the appropriate alphabetical order to read as follows:
"ADDITIONAL COMMITMENT" means, with respect to any Lender which
executes a New Commitment Agreement in accordance with Section 3.4(d), the
commitment of such Lender in an aggregate principal amount up to the amount
specified in such New Commitment Agreement (i) to make Revolving Loans in
accordance with the provisions of Section 2.1(a) and (ii) to purchase
Participation Interests in Letters of Credit in accordance with the
provisions of Section 2.2(c).
"APPLICATION PERIOD", in respect of any Asset Disposition, means the
lesser of (a) the period of 180 days following the consummation of such
Asset Disposition or (b) such period as is provided for reinvestment of
such proceeds under the Indenture.
"ASSET DISPOSITION" means (a) any sale, lease, transfer or other
disposition of any Property other than cash and Cash Equivalents (including
without limitation pursuant to any sale leaseback transaction) and (b) any
"Asset Sale" as such term is defined in the Indenture. The term "Asset
Disposition" shall not include (i) the sale of inventory in the ordinary
course of business for fair consideration and (ii) the sale or disposition
of machinery and equipment no longer used or useful in the conduct of such
Person's business.
"ASSET DISPOSITION PREPAYMENT EVENT" means, with respect to any Asset
Disposition described in Section 8.4(b)(ii), the failure of the Credit
Parties to apply (or cause to be applied) the Net Cash Proceeds of such
Asset Disposition to the acquisition of Eligible Assets during the
Application Period for such Asset Disposition.
"ELIGIBLE ASSETS" means another business or any substantial part of
another business or other long-term assets, in each case, in, or used or
useful in, the same or a similar line of business as the Borrower and its
Subsidiaries were engaged in on the Closing Date, or any reasonable
extensions or expansions thereof.
"▇▇▇▇▇▇ ADVANCE" means a loan or advance by the Borrower to ▇▇▇▇▇▇
pursuant to and in accordance with the ▇▇▇▇▇▇ Transaction Documents, in a
principal amount not in excess of $4,000,000, made for the purpose of
financing payments in excess of $3,400,000 required to by made by ▇▇▇▇▇▇ to
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in connection with a dispute among the Parent, the
Borrower, ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ described in the ▇▇▇▇▇▇ Transaction
Documents.
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"▇▇▇▇▇▇ TRANSACTION DOCUMENTS" means, collectively, the Amended and
Restated Investment Agreement dated as of October 2, 1998 (the "INVESTMENT
AGREEMENT") among the ▇▇▇▇▇▇, the Borrower, the Parent and the purchasers
party thereto, and each of the agreements attached as exhibits thereto (or
as exhibits to such an exhibit), when executed and delivered by the Persons
contemplated thereby to be party thereto in substantially the form so
attached.
"NEW COMMITMENT AGREEMENT" means such term as is defined in Section
3.4(d).
"NET CASH PROCEEDS" means the aggregate cash proceeds received by the
Borrower or its Subsidiaries in respect of any Asset Disposition net of
(a) direct costs in connection therewith (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and
(b) taxes paid or payable as a result thereof; it being understood that
"Net Cash Proceeds" shall include, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received
by the Borrower or any Subsidiary in any Asset Disposition. In addition,
the "Net Cash Proceeds" of any Asset Disposition shall include any other
amounts defined as "Net Proceeds" of such transaction under the Indenture.
"SPIN-OFF" means the distribution of all of the outstanding shares of
common stock of ▇▇▇▇▇▇ to the Parent and related transactions as described
in and in accordance with the ▇▇▇▇▇▇ Transaction Documents.
2. The following definitions appearing in Section 1.1 of the Credit
Agreement are hereby amended and restated in their entireties to read as
follows:
"APPLICABLE PERCENTAGE" means, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan or the
applicable rate of the Unused Fee for any day for purposes of Section
3.5(b) or the applicable rate of the Standby Letter of Credit Fee for any
day for purposes of Section 3.5(c)(i) or the applicable rate of the Trade
Letter of Credit Fee for any day for purposes of Section 3.5(c)(ii), the
appropriate applicable percentage corresponding to the Consolidated Funded
Indebtedness Ratio in effect as of the most recent Calculation Date:
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PRICING CONSOLIDATED FUNDED EURODOLLAR BASE RATE UNUSED STANDBY TRADE
LEVEL INDEBTEDNESS RATIO LOANS LOANS FEE LOC FEE LOC FEE
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I GREATER THAN OR EQUAL TO 4.0
to 1.0 2.50% 1.50% 0.50% 2.50% 1.25%
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II LESS THAN 4.0 to 1.0 but
GREATER THAN OR EQUAL TO 3.5
to 1.0 2.25% 1.25% 0.50% 2.25% 1.125%
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III LESS THAN 3.5 to 1.0 but
GREATER THAN OR EQUAL TO 3.0
to 1.0 2.00% 1.00% 0.50% 2.00% 1.00%
----------------------------------------------------------------------------------------------------------
IV LESS THAN 3.0 to 1.0 but
GREATER THAN OR EQUAL TO 2.5
to 1.0 1.75% 0.75% 0.375% 1.75% 0.875%
----------------------------------------------------------------------------------------------------------
V LESS THAN 2.5 to 1.0 1.50% 0.50% 0.375% 1.50% 0.75%
----------------------------------------------------------------------------------------------------------
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Determination of the appropriate Applicable Percentages based on the
Consolidated Funded Indebtedness Ratio shall be made as of each Calculation
Date. The Consolidated Funded Indebtedness Ratio in effect as of a
Calculation Date shall establish the Applicable Percentages that shall be
effective as of the date designated by the Agent as the Applicable
Percentage Change Date. The Agent shall determine the Applicable
Percentages as of each Calculation Date and shall promptly notify the
Borrower and the Lenders of the Applicable Percentages so determined and of
the Applicable Percentage Change Date. Such determinations by the Agent of
the Applicable Percentages shall be conclusive absent demonstrable error.
As of the date of the consummation of the Spin-Off, the Applicable
Percentage shall be based on Pricing Level III and shall remain at Pricing
Level III until the Agent has received the Required Financial Information
for the Calculation Date occurring on March 31, 1999.
"CONSOLIDATED EBITDA" means for the four consecutive quarter period
ending as of the Calculation Date, the sum of Consolidated Net Income PLUS
Consolidated Interest Expense PLUS all provisions for any Federal, state or
other income taxes PLUS depreciation, amortization and other non-cash
charges (which shall include amortization of capitalized interest and debt
issuance costs) for the Borrower and its Subsidiaries on a consolidated
basis (excluding any portion of such Consolidated EBITDA which would
otherwise be attributable to ▇▇▇▇▇▇ and its Subsidiaries on or prior to the
consummation of the Spin-Off) PLUS, to the extent deducted in determining
such Consolidated Net Income, charges taken, and fees, expenses and other
transaction costs incurred, in connection with the Spin-Off; provided,
however, that with respect to each of the fiscal quarters ending on the
dates set forth below, the amounts corresponding to such dates shall be
deemed to be the Consolidated EBITDA for such quarters:
DATE AMOUNT
September 30, 1997 $5,600,000
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December 31, 1997 $5,600,000
March 31, 1998 $5,900,000
June 30, 1998 $6,100,000.
"CONSOLIDATED FUNDED INDEBTEDNESS RATIO" means, as of the last day of
any fiscal quarter, the ratio of (i) Consolidated Funded Indebtedness plus
Indebtedness existing or incurred pursuant to Section 8.1(h)(ii) minus cash
and Cash Equivalents as shown on the consolidated balance sheet of the
Borrower and its Subsidiaries on such day to (ii) Consolidated EBITDA.
"CONSOLIDATED INTEREST EXPENSE" means for the four consecutive quarter
period ending as of the Calculation Date, all net cash interest expense for
such period, including the interest component under Capital Leases, for the
Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP applied on a consistent basis; provided, however, that
with respect to each of the fiscal quarters ending on the dates set forth
below, the amounts corresponding to such dates shall be deemed to be the
Consolidated Interest Expense for such quarters:
DATE AMOUNT
September 30, 1997 $2,125,000
December 31, 1997 $2,125,000
March 31, 1998 $2,125,000
June 30, 1998 $2,125,000
September 30, 1998 $2,125,000.
"INDENTURE" means that certain Indenture dated as of January 24, 1996
between the Borrower and The Bank of New York, as Trustee, as amended or
modified by the First Supplemental Indenture thereto dated as of September
30, 1998, pursuant to which the notes evidencing the Subordinated
Financing are issued, without giving effect to any modification, amendment
and/or waiver of any term or provision of such Indenture subsequent to the
First Supplemental Indenture.
"MFA" or "▇▇▇▇▇▇" means ▇▇▇▇▇▇ Software International, Inc., formerly
known as ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates, Inc.
"REQUIRED LENDERS" means, at any time, a minimum of two Lenders which
are then in compliance with their obligations hereunder (as determined by
the Agent) and holding in the aggregate at least 51% of (i) the Commitments
to make Revolving Loans or (ii) if the Commitments have been terminated,
the outstanding Loans and Participation Interests.
"TERMINATION DATE" means July 31, 2002.
3. The definitions of "Pricing Level I", "Pricing Level II", "Pricing
Level III", "Restricted Subsidiary" and "Unrestricted Subsidiary" are deleted in
their entireties. All references to "Restricted
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Subsidiary" or "Restricted Subsidiaries" appearing in the Credit Documents are
amended to refer to "Subsidiary" or "Subsidiaries", as appropriate.
4. Clause (ii) appearing in the first sentence of Section 2.1(a) of the
Credit Agreement is hereby amended as follows:
"(ii) with regard to the Lenders collectively, the aggregate principal
amount of outstanding Revolving Loans PLUS LOC Obligations outstanding
shall not exceed THIRTY MILLION DOLLARS ($30,000,000) (as such aggregate
maximum amount may be increased or reduced from time to time as provided in
Section 3.4, the "REVOLVING COMMITTED AMOUNT")."
5. Clause (b) appearing in Section 3.3 of the Credit Agreement is hereby
renumbered as clause (d) and new clauses (b) and (c) are added to Section 3.3 to
read as follows:
(b) MANDATORY PREPAYMENTS. If at any time, the sum of the aggregate
principal amount of outstanding Revolving Loans PLUS LOC Obligations
outstanding shall exceed the Revolving Committed Amount, the Borrower
immediately shall prepay the Revolving Loans in an amount equal to such
excess (such prepayment to be applied as set forth in clause (c) below).
(c) APPLICATION OF MANDATORY PREPAYMENTS. All amounts prepaid
pursuant to Section 3.3(b), shall be applied to prepay Revolving Loans and
(after all Revolving Loans have been repaid) to a cash collateral account
in respect of LOC Obligations. Within the parameters of the applications
set forth above, prepayments shall be applied first to Base Rate Loans and
then to Eurodollar Loans in direct order of Interest Period maturities.
All prepayments under this Section 3.3(c) shall be subject to Section 3.11
and be accompanied by interest on the principal amount prepaid through the
date of prepayment.
6. Section 3.4 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
3.4 TERMINATION, REDUCTION AND INCREASE OF COMMITMENTS.
(a) VOLUNTARY REDUCTIONS. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole or
in part (in minimum aggregate amounts of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the full remaining
amount of the Revolving Committed Amount)) upon three Business Days' prior
written notice to the Agent; PROVIDED, HOWEVER, no such termination or
reduction shall be made which would reduce the Revolving Committed Amount
to an amount less than the aggregate principal amount of outstanding
Revolving Loans PLUS LOC Obligations outstanding.
(b) MANDATORY REDUCTIONS. Upon the occurrence of an Asset
Disposition Prepayment Event, the Revolving Committed Amount automatically
shall be permanently reduced in an aggregate amount equal to the Net Cash
Proceeds of the related Asset Disposition
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not applied (or caused to be applied) by the Borrower and its Subsidiaries
during the related Application Period to acquire Eligible Assets as
contemplated by the terms of Section 8.4(b)
(c) TERMINATION DATE. The Commitments of the Lenders and the Issuing
Lender shall automatically terminate on the Termination Date. The Agent
shall promptly notify each of the Lenders of receipt by the Agent of any
notice from the Borrower pursuant to this Section 3.4.
(d) INCREASE IN REVOLVING COMMITMENTS. Within the sixty (60) day
period following the consummation of the Spin-Off, the Borrower shall have
the right upon written notice to the Agent to increase the Revolving
Committed Amount by up to $10,000,000, SUBJECT, HOWEVER, in any such case,
to satisfaction of the following conditions precedent:
(A) no Default or Event of Default has occurred and is continuing on
the date on which such Revolving Committed Amount increase is to become
effective;
(B) the representations and warranties set forth in Section 6 of this
Credit Agreement shall be true and correct in all material respects on and
as of the date on which such Revolving Committed Amount increase is to
become effective;
(C) on or before the date on which such Revolving Committed Amount
increase is to become effective, the Agent shall have received, for its own
account, the mutually acceptable fees and expenses required by separate
agreement of the Borrower and the Agent to be paid in connection with such
increase;
(D) such Revolving Committed Amount increase shall be an integral
multiple of $500,000 and shall in no event be less than $2,500,000; and
(E) such requested Commitment increase shall be effective on such
date only to the extent that, on or before such date, (A) the Agent shall
have received and accepted a corresponding amount of Additional
Commitment(s) pursuant to a commitment letter(s) acceptable to the Agent
from one or more Lenders acceptable to the Agent and, with respect to any
Lender that is not at such time a Lender hereunder, the Borrower and (B)
each such Lender has executed an agreement in the form of SCHEDULE 3.4(D)
hereto (each such agreement a "NEW COMMITMENT AGREEMENT"), accepted in
writing therein by the Agent and, with respect to any Lender that is not at
such time a Lender hereunder, the Borrower, with respect to the Additional
Commitment of such Lender.
7. A new Section 6.17 is added to the Credit Agreement to read as
follows:
6.17 YEAR 2000 COMPLIANCE.
Each of the Credit Parties has conducted a review and assessment of its
computer applications and made inquiry of its key suppliers, vendors and
customers with respect to the "year 2000 problem"
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(that is, the risk that computer applications may not be able to properly
perform date-sensitive functions after December 31, 1999) and, based on that
review and inquiry, the Credit Parties believe that the year 2000 problem will
not result in a material adverse change in its business condition (financial
or otherwise), operations, business, assets, liabilities or prospects of the
Credit Parties taken as a whole, or on the ability of any Credit Party to
perform any material obligation under the Credit Documents to which it is
a party.
8. Section 7.11 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
7.11 FINANCIAL COVENANTS.
(a) CONSOLIDATED FUNDED INDEBTEDNESS RATIO. There shall be maintained as of
the last day of each fiscal quarter a Consolidated Funded Indebtedness Ratio of
not greater than the amount set forth below:
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Fiscal Year March 31 June 30 September 30 December 31
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1998 4.75:1.0 4.75:1.0
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1999 4.75:1.0 4.75:1.0 4.50:1.0 4.50:1.0
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2000 4.25:1.0 4.25:1.0 4.00:1.0 4.00:1.0
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2001 3.67:1.0 3.67:1.0 3.25:1.0 3.25:1.0
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2002 3.00:1.0 3.00:1.0
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(b) CONSOLIDATED INTEREST COVERAGE RATIO. There shall be maintained
as of the last day of each fiscal quarter a Consolidated Interest Coverage
Ratio of not less than the amount set forth below:
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Fiscal Year March 31 June 30 September 30 December 31
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1998 2.00:1.0 2.00:1.0
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1999 2.00:1.0 2.00:1.0 2.10:1.0 2.10:1.0
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2000 2.20:1.0 2.20:1.0 2.35:1.0 2.35:1.0
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2001 2.50:1.0 2.50:1.0 2.65:1.0 2.65:1.0
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2002 2.80:1.0 2.80:1.0
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9. The final proviso appearing in Section 7.14 of the Credit Agreement is
hereby deleted in its entirety.
10. Sections 8.4(b) and (c) of the Credit Agreement are hereby amended and
restated in their entireties to read as follows:
(b) make any Asset Disposition; PROVIDED, HOWEVER, the Borrower and
its Subsidiaries shall be permitted to (i) consummate the Spin-Off and (ii)
subject to the terms of Section 8.8 and Section 8.12, make other Asset
Dispositions, PROVIDED that (A) after giving
8
effect to such Asset Disposition, the aggregate book value of assets sold
or otherwise disposed of pursuant to this subsection (b) since the Closing
Date does not exceed 10% of Consolidated Total Assets determined as of the
end of the Borrower's fiscal quarter most recently ended prior to the date
of such Asset Disposition, (B) after giving effect on a Pro Forma Basis to
such Asset Disposition, no Default or Event of Default would exist
hereunder and (C) no later than 10 days prior to such Asset Disposition,
the Agent and the Lenders shall have received a certificate of an officer
of the Borrower specifying the anticipated or actual date of such Asset
Disposition, briefly describing the assets to be sold or otherwise disposed
of and setting forth the net book value of such assets, the aggregate
consideration and the Net Cash Proceeds to be received for such assets in
connection with such Asset Disposition, and thereafter the Credit Parties
shall, within the Application Period, apply (or cause to be applied) an
amount equal to the Net Cash Proceeds of such Asset Disposition to (i)
acquire Eligible Assets or (ii) prepay the Loans (and cash collateralize
of LOC Obligations) in accordance with the terms of Section 3.3(b).
Pending final application of the Net Cash Proceeds of any Asset
Disposition, the Credit Parties may apply such Net Cash Proceeds to
temporarily reduce the Revolving Loans or to make Permitted Investments;
(c) except as otherwise permitted by Section 8.4(a), acquire all or
any portion of the capital stock or securities of any other Person or
purchase, lease or otherwise acquire (in a single transaction or a series
of related transactions) all or any substantial part of the Property of any
other Person; provided, however that the Borrower may acquire all or any
portion of the capital stock, or all or substantially all of the Property,
of any other Person if (i) after giving effect on a Pro Forma Basis to such
acquisition, no Default or Event of Default would exist hereunder, (ii)
after giving effect to such acquisition there shall be at least $10,000,000
of availability under the Revolving Loan Commitments (iii) the
consideration paid for such acquisition (less equity capital raised by the
Borrower specifically for the purpose of financing such acquisition) shall
not exceed $20,000,000 and (iv) the aggregate consideration paid for all
acquisitions (less equity capital raised by the Borrower specifically for
the purpose of financing such acquisitions) shall not exceed $30,000,000;
or
11. Sections 8.7 of the Credit Agreement is hereby amended by inserting
the following proviso at the end of the first sentence thereof:
"; PROVIDED, HOWEVER, that notwithstanding clause (ii)(B) of this Section
8.7, the Borrower may repurchase up to $30,000,000 principal amount of its
notes representing the Subordinated Financing for an aggregate purchase
price not in excess of $33,900,000 (plus accrued and unpaid interest on
such notes) in connection with, and in consummation of the Spin-Off Offer
(as defined in the Indenture) in accordance with the terms of the
Indenture."
12. Section 8.15 of the Credit Agreement is hereby deleted in its
entirety.
13. Clause (i) appearing in the first sentence of Section 9.1(c) of the
Credit Agreement is hereby amended as follows:
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(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.11, or 8.1
through 8.14, inclusive, or
14. Schedule 2.1(a) of the Credit Agreement is hereby deleted and replaced
with Schedule 2.1(a) attached hereto.
15. A new Exhibit 3.4(b) is added to the Credit Agreement in the form of
Exhibit 3.4(b) attached hereto.
C. CONSENT. Notwithstanding anything in the Credit Documents to the
contrary, the Lenders hereby consent to the Spin-Off (including, without
limitation the ▇▇▇▇▇▇ Advance) subject to the satisfactions of the conditions
set forth below:
1. The Agent shall have received a certificate executed by the chief
financial officer of the Borrower as of the date hereof stating that
immediately after giving effect to the Spin-Off, (i) the Borrower on a
consolidated basis is Solvent, (ii) no Default or Event of Default exists
and (iii) the representations and warranties set forth in Section 6 of the
Credit Agreement are true and correct in all material respects;
2. The Spin-Off shall have been consummated in accordance with the
terms of the ▇▇▇▇▇▇ Transaction Documents and in compliance with applicable
law and regulatory approvals, and the Agent shall have received executed
copies of the ▇▇▇▇▇▇ Transaction Documents which shall not have been
altered, amended or otherwise changed or supplemented or any provision
thereof waived in any manner which could materially affect the Agent or the
Lenders, without the prior written consent of the Agent; and
3. The Indenture Amendments contained in the First Supplemental
Indenture shall have become effective and shall be in the form appearing in
the Consent Solicitation Statement.
4. The Agent shall have received satisfactory evidence that the
Borrower has received a payment of at least $35,000,000 in connection with
the Spin-Off.
5. The Agent shall have received a new Revolving Note for each
Lender, executed by the Borrower;
6. The Agent shall have received all documents it may reasonably
request relating to the existence and good standing of each of the Credit
Parties, the corporate or other necessary authority for and the validity of
the Credit Documents and this Amendment, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the Agent;
7. The Agent shall have received a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Credit Parties, dated as of the date hereof
in form and substance satisfactory to the Agent;
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8. The Agent shall have received for the account of each Lender, an
amendment fee equal to 37.5 bps on such Lender's Commitment; and
9. The Agent shall have received such other documents, agreements or
information which may be reasonably requested by the Agent.
D. WAIVER. Subject to the satisfaction of the conditions set forth in
Section C above, the Lenders hereby agree to waive application of Sections 8.4,
8.8, or 8.11 of the Credit Agreement only to the extent that the provisions of
any thereof would prohibit the Spin-Off. This is a one time waiver and shall
not be construed to be a waiver of any Event of Default that may exist or an
agreement to waive any Event of Default that may occur in the future.
E. RELEASE. Subject to the satisfaction of the conditions set forth in
Section C above the Lenders hereby (i) release each of the ▇▇▇▇▇▇ Companies from
all of their respective obligations under or in respect of the guarantee set
forth in Section 4 of the Credit Agreement or under or in respect of any Joinder
Agreement to which any of them is party and (ii) release, and authorize and
direct the Agent to release, all security interests or other liens in favor of
the Lenders or the Agent, on behalf of the Lenders, and securing the Borrower's
Obligations or the obligations of any of the ▇▇▇▇▇▇ Companies under its
guarantee contained in Section 4 hereof or arising under any Joinder Agreement
to which it is party, in or on any and all assets or property of any of the
▇▇▇▇▇▇ Companies arising or created under the Security Agreement or any other
security agreement entered into in connection with the Credit Agreement to which
it is party, and hereby instructs the Agent to execute and deliver to the
Borrower or ▇▇▇▇▇▇, at the sole expense of the Borrower, all documents or
instruments reasonably requested by it in connection therewith.
F. The Borrower will execute such additional documents as are reasonably
requested by the Agent to reflect the terms and conditions of this Agreement,
without limitation, the Borrower shall deliver to the Agent an updated SCHEDULE
6.14 to the Credit Agreement.
G. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits) remain in full force and effect.
H. The Borrower agrees to pay all reasonable costs and expenses in
connection with the preparation, execution and delivery of this Agreement,
including without limitation the reasonable fees and expenses of the Agent's
legal counsel.
I. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
J. This Agreement shall be deemed to be a contract made under, and for
all purposes shall be construed in accordance with the laws of the State of New
York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed under seal and delivered as of the date and
year first above written.
BORROWER:
▇▇▇▇▇ SYSTEMS, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
GUARANTORS:
PINNACLE AUTOMATION, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
M&E INSTALLERS, INC.
By:/s/▇▇▇▇ ▇'▇▇▇▇▇
Vice President
NEWALV, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇▇▇ BROS., INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer and Chief Financial
Officer
THE ▇▇▇▇▇▇▇▇ COMPANY
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
12
WHITE SYSTEMS, INC.
(formerly known as White Storage and
Retrieval Systems, Inc.)
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer and Chief Financial
Officer
REAL TIME SOLUTIONS, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
LENDERS:
NATIONSBANK, N.A., individually in its
capacity as a Lender and in its capacity
as Agent
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
13
SCHEDULE 2.1(a)
LENDERS
BANK PERCENTAGE AMOUNT
NationsBank, N.A. 58.33333333% $17,500,000
▇▇▇▇▇▇ Trust and Savings Bank 41.▇▇▇▇▇▇▇▇% $12,500,000
EXHIBIT 3.4(d)
FORM OF
NEW COMMITMENT AGREEMENT
Reference is made to the Credit Agreement dated as of January 24, 1996 (as
amended, modified, extended or restated from time to time, the "CREDIT
AGREEMENT") among by and among ▇▇▇▇▇ Systems, Inc., a Delaware corporation (the
"BORROWER"), the other Credit Parties party thereto, the Lenders party thereto
and NationsBank, N.A., as Agent. All of the defined terms in the Credit
Agreement are incorporated herein by reference.
1. Effective as of the Effective Date set forth below, the undersigned
Lender hereby confirms its Additional Commitment, in an aggregate principal
amount of up to the amount of set forth below, to make Revolving Loans in
accordance with the provisions of Section 2.1(a) of the Credit Agreement. If
the undersigned Lender is already a Lender under the Credit Agreement, such
Lender acknowledges and agrees that such Additional Commitment is in addition to
any existing Commitment of such Lender under the Credit Agreement. If the
undersigned Lender is not already a Lender under the Credit Agreement, such
Lender hereby acknowledges, agrees and confirms that, by its execution of this
New Commitment Agreement, such Lender will, as of the Effective Date, be a party
to the Credit Agreement and be bound by the provisions of the Credit Agreement
and, to the extent of its Commitment, have the rights and obligations of a
Lender thereunder.
2. This New Commitment Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Amount of Additional Commitment $___________
Effective Date of Additional Commitment ________________, 19__
The terms set forth above
are hereby agreed to:
[Lender]
By:___________________________
Title:________________________
CONSENTED TO (as required by the Credit Agreement):
NATIONSBANK, N.A., as Agent ▇▇▇▇▇ SYSTEMS, INC.
By:____________________________ By:__________________________
Title:__________________________ Title:_________________________