EXHIBIT 10.2.2
1998B AMENDMENT TO LOAN DOCUMENTS
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This is the 1998B Amendment to Loan Documents (this "Amendment") dated as
of February 18, 1998, among (i) BANK ONE, KENTUCKY, NA, 416 West Jefferson
Street, Louisville, Kentucky 40202, as Agent Bank (in such capacity, "Agent
Bank"); (ii) BANK ONE, KENTUCKY, NA, 416 West Jefferson Street, Louisville,
Kentucky 40202, as a Bank (in such capacity, "Bank One"), LASALLE NATIONAL
BANK, 135 South LaSalle Street, Chicago, Illinois 60603 ("LaSalle") and UNION
BANK OF CALIFORNIA, N.A., 350 California Street, 6th Floor, San Francisco,
California 94104 ("Union Bank") (Bank One, LaSalle and Union Bank, each a
"Bank"); (iii) BT HOLDINGS, INC. ("BT Holdings"), BELL TECHNOLOGIES, INC.
("Bell"), TUBE TURNS TECHNOLOGIES, INC. ("Tube Turns"), GROUP TECHNOLOGIES
CORPORATION ("GTC") and METRUM-DATATAPE, INC. ("MD")(BT Holdings, Bell, Tube
Turns, GTC and MD are collectively referred to as the "Borrowers") and (iv)
GROUP FINANCIAL PARTNERS, INC., as Guarantor ("GFP" or the "Guarantor"). Any
terms not specifically defined herein shall have the meaning set forth in the
1997A Amended and Restated Loan Agreement dated as of November 1, 1997 between
the Agent Bank and the Borrowers, as amended by the 1998A Amendment to Loan
Documents (the "Loan Agreement").
RECITALS
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A. The Borrowers, the Agent Bank and Bank One have entered into the Loan
Agreement, pursuant to which, among other things, the Agent Bank and Bank One
have agreed to provide the Borrowers with the Revolving Credit Facility, the
Letter of Credit Subfacility, the Swing Line Credit Subfacility and the Term
Loans.
B. The Borrowers, the Agent Bank and Bank One wish to amend the Loan
Documents to add LaSalle and Union Bank as Banks and to effect certain other
modifications to the Loan Documents.
NOW, THEREFORE, the Borrowers, the Guarantor, the Agent Bank and the Banks
agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT.
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A. The introductory paragraph of the Loan Agreement is amended and
restated as follows:
THIS 1997A AMENDED AND RESTATED LOAN AGREEMENT (this "Loan
Agreement"), is made and entered into as of the 1st day of November,
1997, by and among (i) BANK ONE, KENTUCKY, NA, a national banking
association with principal office and place of business in Louisville,
Kentucky, in its capacity as Agent Bank hereunder ("the Agent Bank");
(ii) BANK ONE, KENTUCKY, NA, in its capacity as a Bank hereunder ("Bank
One"), LASALLE NATIONAL BANK, a national banking association, as a Bank
hereunder ("LaSalle"), and UNION BANK OF CALIFORNIA, N.A., a national
banking association, as a Bank hereunder ("Union Bank"), (Bank One,
LaSalle and Union Bank each, a "Bank," and all of the foregoing
collectively the "Banks"); (iii) BT HOLDINGS, INC., a Kentucky
corporation with principal office and place of business and registered
office in Louisville, Jefferson County, Kentucky ("BT"), BELL
TECHNOLOGIES, INC., a Florida corporation with principal office and
place of business in Orlando, Orange County, Florida ("Bell"), TUBE
TURNS TECHNOLOGIES, INC., a Kentucky corporation with principal office
and place of business and registered office in Louisville, Jefferson
County, Kentucky ("TT"), GROUP TECHNOLOGIES CORPORATION, a Florida
corporation with principal office and place of business in Tampa,
Hillsborough County, Florida ("GTC"), and METRUM-DATATAPE, INC., a
Delaware corporation with principal office and place of business in
Louisville, Kentucky ("MD") (BT, Bell, TT, GTC, and MD each, a
"Borrower," and all of the foregoing collectively, the "Borrowers"),
and (iv) GROUP FINANCIAL PARTNERS, INC., a Kentucky corporation with
principal office and place of business in Louisville, Kentucky, solely
in its capacity as guarantor (the "Guarantor").
B. Section 1 (DEFINITIONS AND CROSS REFERENCES) is amended by the
amendment and restatement of the following definitions:
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1.25 "Business Day" means any day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the
Commonwealth of Kentucky or is a day on which banking institutions
located in the Commonwealth of Kentucky or the State of California are
authorized or required by law or other governmental action to close.
1.58 "Funded Debt" means, with respect to the Borrowers on a
Combined basis in accordance with GAAP, (i) all indebtedness for
borrowed money, including, without limitation, all Revolving Credit
Loans, all Swing Line Loans, all reimbursement obligations in respect
of all letters of credit, including the Letters of Credit and the Term
Loans, (ii) mandatorily redeemable preferred stock of a Borrower
(except any mandatorily preferred stock owned by another Borrower or
the Guarantor), (iii) that portion of obligations with respect to
capital leases which is properly classified as a liability on a
balance sheet in conformity with GAAP , (iv) that portion of
obligations with respect to Synthetic Leases which is not classified
as a liability on a balance sheet in conformity with GAAP, (v) notes
payable and drafts accepted representing extensions of credit whether
or not representing obligations for borrowed money, (vi) any
obligation owed for all or any part of the deferred purchase price of
property or services which purchase price is (y) due more than six
months from the date of the incurring of the obligation in respect
thereof, or (z) evidenced by a note or similar written instrument, but
excluding trade payables incurred in the ordinary course of business,
(vii) all indebtedness secured by any lien on any property or asset
owned by the Borrowers regardless of whether the indebtedness secured
thereby shall have been assumed by the Borrowers or is non-recourse to
the credit of the Borrowers but only to the extent of the fair market
value of any such property or assets, and (viii) all other Contingent
Obligations of the Borrowers not otherwise included in clauses (i)
through (vii) of this Section. For purposes of calculating Funded Debt
to be used in financial ratios in this Agreement, the Borrowers, shall
reduce Funded Debt on a dollar-for-dollar basis by an amount equal to
cash then on deposit with the Agent Bank in excess of $2,000,000.
1.111 "Revolving Credit Facility Commitment Fees" has the
meaning set forth in Section 2.3A hereof.
1.114 "Revolving Credit Notes" means (i) that certain Amended
and Restated Revolving Credit Promissory Note made by the Borrowers,
payable to the order of Bank One, and in the face principal amount of
Thirteen Million Three Hundred Thirty Five Thousand and 00/100 Dollars
($13,335,000.00), the form of which is annexed to this Loan Agreement
as Exhibit A-1, as the same may hereafter be amended, modified,
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renewed, replaced and/or restated from time to time; (ii) that certain
Amended and Restated Revolving Credit Promissory Note made by the
Borrowers, payable to the order of LaSalle, and in the face principal
amount of Nine Million Nine Hundred Ninety Nine Thousand and 00/100
Dollars ($9,999,000.00), the form of which is annexed to this Loan
Agreement as Exhibit A-2, as the same may hereafter be amended,
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modified, renewed, replaced and/or restated from time to time; (iii)
that certain Amended and Restated Revolving Credit Promissory Note
made by the Borrowers, payable to the order of Union Bank, and in the
face principal amount of Six Million Six Hundred Sixty Six Thousand
and 00/100 Dollars ($6,666,000.00), the form of which is annexed to
this Loan Agreement as Exhibit A-3, as the same may hereafter be
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amended, modified, renewed, replaced and/or restated from time to time
and (iv) each future Revolving Credit Promissory Note, if any, made by
the Borrowers pursuant to the Revolving Credit Facility.
1.133 "Term Notes" means (i) that certain Amended and Restated
Term Promissory Note made by the Borrowers, payable to the order of
Bank One, and in the face principal amount of Six Million Four Hundred
Forty Five Thousand Two Hundred Fifty and 00/100 Dollars
($6,445,250.00), the form of which is annexed to this Loan Agreement
as Exhibit B-1, as the same may hereafter be amended, modified,
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renewed, replaced and/or restated from time to time; (ii) that certain
Amended and Restated Term Promissory Note made by the Borrowers,
payable to the order of LaSalle, and in the face principal amount of
Four Million Eight Hundred Thirty Two Thousand Eight Hundred Fifty and
00/100 Dollars ($4,832,850.00), the form of which is annexed
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to this Loan Agreement as Exhibit B-2, as the same may hereafter be
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amended, modified, renewed, replaced and/or restated from time to
time; (iii) that certain Amended and Restated Term Promissory Note
made by the Borrowers, payable to the order of Union Bank, and in the
face principal amount of Three Million Two Hundred Twenty One Thousand
Nine Hundred and 00/100 Dollars ($3,221,900.00), the form of which is
annexed to this Loan Agreement as Exhibit B-3, as the same may
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hereafter be amended, modified, renewed, replaced and/or restated from
time to time and (iv) each future Term Promissory Note, if any, made
by the Borrowers pursuant to the Term Facility.
C. Section 1 (DEFINITIONS AND CROSS REFERENCES) is further amended
by the addition of the following definition:
1.141 "Synthetic Lease" means any lease (i) that is treated as an
operating lease for accounting purposes, with the result that the
obligations with respect to such lease are not classified as a
liability on a balance sheet, in conformity with GAAP, and (ii) that
is treated as a conditional sale for Federal income tax purposes, with
the result that the lessee of such lease is entitled to take
depreciation on the leased property and to characterize rental
payments as payments of principal and interest for Federal income tax
purposes.
1.142 "Bank One 1-Day Funds Transfer Pricing Rate" means an interest
rate established daily by the Agent Bank, based on its cost of funds,
and used in connection with Swing Line Loans.
D. Section 2.4C (General Provisions Regarding Payments - Revolving
Credit Loans). Section 2.4C (i) is hereby amended by adding the following at the
end of such section:
The payments to be made by the Borrowers with respect to the Revolving
Credit Notes for the benefit of the Banks shall be aggregated into a
single payment made by the Borrowers to the Agent Bank for the benefit
of the Banks. The Agent Bank shall be responsible for remitting to
each Bank its portion of such payment based upon its Revolving Credit
Facility Pro Rata Share of such payment.
E. Section 2.6A (Swing Line Loans). Section 2.6A(i) is hereby
amended by deleting the words "the Base Rate" in the first sentence and
substituting therefor "the Bank One 1-Day Funds Transfer Pricing Rate".
F. Section 3.3C (General Provisions Regarding Payments - Term
Loans). Section 3.3C (i) is hereby amended by adding the following at the end of
such section:
The payments to be made by the Borrowers with respect to the Term
Notes for the benefit of the Banks shall be aggregated into a single
payment made by the Borrowers to the Agent Bank for the benefit of the
Banks. The Agent Bank shall be responsible for remitting to each Bank
its portion of such payment based upon its Term Loan Pro Rata Share of
such payment.
G. Section 7.3B (Quarterly Statements) is hereby amended and
restated as follows:
B. Quarterly Statements. BT, for itself and as agent for the
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other Borrowers, shall furnish to the Agent Bank, as soon as
available, and within forty five (45) days after the end of each
Fiscal Quarter, an unaudited Combined balance sheet of the Borrowers
as at the end of such Fiscal Quarter, and related unaudited divisional
and Combined statements of income, retained earnings and cash flows of
the Borrowers for such Fiscal Quarter, all in reasonable detail,
prepared in accordance with GAAP consistently applied and certified to
be true, accurate and complete in all material respects by the
President or Chief Financial Officer of BT, for itself and as agent
for the other Borrowers.
H. Section 12.A (Assignments to Eligible Assignees) is hereby
amended by the amendment and restatement of the last sentence of Section 12.A to
read as follows:
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The Bank assigning a portion or all of its Revolving Loan Commitment,
Revolving Credit Loans and Term Loans pursuant to this Section 12, or
the bank purchasing the interest of the Assigning Bank, shall pay a
fee to the Agent Bank in the amount of $3,000.
I. Section 15 (Notice) is hereby amended to change the notice
provisions with respect to the Banks, as follows:
If to the Banks: BANK ONE, KENTUCKY, NA
416 West Jefferson Street
Louisville, KY 40202
Attn: Mr. Todd D. Munson
LASALLE NATIONAL BANK
135 South LaSalle
Chicago, Illinois 60603
Attn: Ms. Susan Kaminski
UNION BANK OF CALIFORNIA, N.A.
350 California Street, 6th Floor
San Francisco, California 94104
Attn: Ms. Gail Fletcher
Also, a final sentence is hereby added to the end of Section 15 as
follows:
Except where the Guarantor or the Borrowers are expressly required by
the provisions of this Loan Agreement to give notice to all of the
Banks, it shall be sufficient whenever the Guarantor or the Borrowers
are required to give notice hereunder for the Guarantor or the
Borrowers to give such notice solely to the Agent Bank.
J. Section 16.11 (Modifications) is hereby amended and restated in
its entirety as follows:
16.11 Modifications. This Loan Agreement may be modified only
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in writing executed by the Borrowers and the Banks. Neither this Loan
Agreement nor the other Loan Documents nor any terms hereof or thereof
may be changed, waived, discharged or terminated unless such change,
waiver, discharge or termination is in writing signed by Banks holding
at least sixty six and 66/100 percent (66 2/3%) of the aggregate of
the Revolving Credit Facility Pro Rata Shares and the Term Loan Pro
Rata Shares (the "Majority Banks"); provided, however, that no such
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change, waiver, discharge or termination, shall, without the consent
of each Bank, (i) extend the Revolving Loan Commitment Termination
Date or the final maturity of the Revolving Credit Note or the Term
Note of such Bank, or change the rate or extend the time of payment of
interest, principal or fees, or reduce the principal amount thereof,
or increase the aggregate amount of the Revolving Loan Commitments
above the maximum amount provided for in Section 2.1 hereof, or
increase any Bank's commitment to disburse its Revolving Loan Pro Rata
Share of Revolving Credit Loans requested by the Borrowers as set
forth in Section 2.1 hereof, or (ii) release any Collateral except as
it shall otherwise be provided in any Loan Document, or (iii) amend,
modify or waive any provisions of this Section 16.11 (Modifications),
Section 2 (Revolving Credit Facility), Section 2.6 (Swing Line Credit
Subfacility), Section 2.7 (Letter of Credit Subfacility), Section 3
(Term Loans), Section 8.1 (Mergers, Acquisitions and Other
Extraordinary Events), Section 9 (Events of Default; Acceleration),
Section 10 (Remedies Upon Default, Etc.), Section 11 (The Agent Bank),
Section 16.2 (Ratable Sharing), or (iv) amend, modify or waive any
provision requiring consent of all Banks, or (v) reduce the
percentages specified in this Section 16.11 or (vi) consent to the
assignment or transfer by the Borrowers of any of their rights and
obligations under this Agreement.
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K. Schedule 2.1. Schedule 2.1 is hereby amended and restated in
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its entirety by Schedule 2.1 attached to this Agreement.
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L. Schedule 3.1. Schedule 3.1 is hereby amended and restated in
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its entirety by Schedule 3.1 attached to this Agreement.
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M. Exhibit A-1. Exhibit A-1 is hereby amended and restated in its
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entirety by Exhibit A-1 attached to this Agreement. Additionally, Exhibit A-2
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and Exhibit A-3, attached hereto, are added as Exhibits to the Loan Agreement.
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N. Exhibit B-1. Exhibit B-1 is hereby amended and restated in its
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entirety by Exhibit B-1 attached to this Agreement. Additionally, Exhibit B-2
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and Exhibit B-3, attached hereto, are added as Exhibits to the Loan Agreement.
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O. Miscellaneous.
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The parties agree that the Applicable Commitment Fee Percentage used in
calculating the Revolving Credit Facility Commitment Fees for the period from
November 1, 1997 through March 31, 1998, pursuant to Section 2.3A of the Loan
Agreement, is 0.30%.
The parties further agree that the Borrowers shall have until March 15,
1998 to provide the Agent Bank with updated listings of all material patents and
trademarks of the Borrowers and to execute and deliver to Agent Bank a
collateral assignment of patents and trademarks. The Borrowers shall complete
and file with the U.S. Patent and Trademark Office such forms as may be
necessary to collaterally assign to the Agent Bank or to perfect the Agent
Bank's security interests in such U.S. patents and trademarks. The Borrowers
shall use their best efforts to assist the Agent Bank, as requested, in making
filings outside the United States to perfect the Agent Bank's security interest
in material patents and trademarks of the Borrowers outside the United States.
P. Ratification. Except as specifically amended by the provisions
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hereinabove, the Loan Agreement remains in full, force and effect. The
Borrowers hereby reaffirm and ratify all of their obligations under the Loan
Agreement, as amended and modified hereby.
2. AMENDMENTS TO AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY
NOTES
The Borrowers shall execute and deliver to the Banks the following Amended
and Restated Revolving Credit Promissory Notes, which are executed and delivered
in amendment, restatement and replacement of, but not in novation of, the
indebtedness evidenced by the Amended and Restated Revolving Credit Promissory
Note of the Borrowers dated March 21, 1997, amended and restated as of November
1, 1997:
(i) that certain Amended and Restated Revolving Credit Promissory Note,
made by the Borrowers, payable to the order of Bank One, and in the face
principal amount of Thirteen Million Three Hundred Thirty Five Thousand and
00/100 Dollars ($13,335,000.00), the form of which is annexed to this
Amendment as Exhibit A-1;
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(ii) that certain Amended and Restated Revolving Credit Promissory Note,
made by the Borrowers, payable to the order of LaSalle, and in the face
principal amount of Nine Million Nine Hundred Ninety Nine Thousand and
00/100 Dollars ($9,999,000.00), the form of which is annexed to this
Amendment as Exhibit A-2; and
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(iii) that certain Amended and Restated Revolving Credit Promissory Note,
made by the Borrowers, payable to the order of Union Bank, and in the face
principal amount of Six Million Six Hundred Sixty Six Thousand and 00/100
Dollars ($6,666,000.00), the form of which is annexed to this Amendment as
Exhibit A-3.
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3. AMENDMENTS TO AMENDED AND RESTATED TERM PROMISSORY NOTES
As of the date hereof, the Borrowers have repaid Five Hundred Thousand
Dollars ($500,000) of principal on the Term Loan, reducing the outstanding
principal balance of the Term Loans to Fourteen Million Five Hundred Thousand
Dollars ($14,500,000). The Borrowers shall execute and deliver to the Banks the
following Amended and Restated Term Promissory Notes, which are executed and
delivered in amendment, restatement and replacement of, but not in novation of,
the indebtedness evidenced by the Amended and Restated Term Promissory Note of
the Borrowers dated March 21, 1997, amended and restated as of November 1, 1997:
(i) that certain Amended and Restated Term Promissory Note made by the
Borrowers, payable to the order of Bank One, and in the face principal
amount of Six Million Four Hundred Forty Five Thousand Two Hundred Fifty
and 00/100 Dollars ($6,445,250.00), the form of which is annexed to this
Amendment as Exhibit B-1;
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(ii) that certain Amended and Restated Term Promissory Note made by the
Borrowers, payable to the order of LaSalle, and in the face principal
amount of Four Million Eight Hundred Thirty Two Thousand Eight Hundred
Fifty and 00/100 Dollars ($4,832,850.00), the form of which is annexed to
this Amendment as Exhibit B-2;
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(iii) that certain Amended and Restated Term Promissory Note made by the
Borrowers, payable to the order of Union Bank, and in the face principal
amount of Three Million Two Hundred Twenty One Thousand Nine Hundred and
00/100 Dollars ($3,221,900.00), the form of which is annexed to this
Amendment as Exhibit B-3.
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4. AMENDMENTS TO MORTGAGES
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The Bell Mortgage and the TT Mortgage are hereby amended by the execution
and delivery of the Amendment to Mortgages, respectively, attached hereto as
Exhibit C-1 and Exhibit C-2. The Amendments to Mortgage shall be recorded in
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the appropriate filing offices in Florida and in Jefferson County, Kentucky.
5. AMENDMENTS TO UCC-1S.
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The Borrowers shall execute and deliver to the Agent Bank UCC-3 amendments,
amending previously filed UCC-1 financing statements to reflect that the secured
party is Bank One, Kentucky, NA, as Agent Bank, on behalf of itself and the
other Banks.
6. OTHER LOAN DOCUMENTS.
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Except as specifically amended by the provisions hereinabove, the Loan
Documents remain in full, force and effect. The Borrowers reaffirm and ratify
their obligations to Agent Bank under all of the Loan Documents, as amended and
modified hereby, including, but not limited to, the Loan Agreement, the Amended
and Restated Revolving Credit Promissory Notes, the mended and Restated Term
Promissory Notes, the Mortgages, the Security Agreements, the Application and
Agreements for Letter of Credit, the Stock Pledge Agreement, the Security
Agreements, the Mortgages and all other agreements, documents and instruments
now or hereafter evidencing and/or pertaining to the Loan Agreement.
7. GUARANTY AGREEMENT.
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Except as specifically amended by the provisions hereinabove, the Guaranty
Agreement remains in full, force and effect. The Guarantor reaffirms and
ratifies its obligations to Agent Bank under the Guaranty Agreement, as amended
and modified hereby.
8. CONDITIONS PRECEDENT. The Agent Bank's obligations under this
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Agreement are expressly conditioned upon, and subject to the following:
A. The execution and delivery by the Borrowers of this Amendment;
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B. The execution and delivery by the Borrowers of the Revolving Credit
Notes;
C. The execution and delivery by the Borrowers of the Term Notes;
D. The execution and delivery by the Borrowers of the Amendments to
Mortgages.
E. The execution and delivery by the Borrowers of the UCC-3s amending
the UCC-1s currently on file.
F. Delivery to the Agent Bank of a copy of the certificate of the
corporate secretary of each of the Borrowers certifying resolutions of each
Borrower's board of directors to the effect that execution, delivery and
performance of this Amendment and subsequent amendments and extensions have been
duly authorized and as to the incumbency of those authorized to execute and
deliver this Amendment, subsequent amendments and all other documents to be
executed in connection herewith and therewith;
G. Delivery to the Agent Bank of a copy of the certificate of the
corporate secretary of the Guarantor certifying resolutions of the Guarantor's
board of directors to the effect that execution, delivery and performance of
this Amendment and subsequent amendments and extensions have been duly
authorized and as to the incumbency of those authorized to execute and deliver
this Amendment, subsequent amendments and all other documents to be executed in
connection herewith and therewith;
H. The representations and warranties of the Borrowers and the
Guarantor shall be true and accurate in all respects.
9. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE BORROWERS. To induce
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the Agent Bank and the Banks to enter into this Amendment, the Borrowers
represent and warrant to Agent Bank and the Banks as follows:
A. Each Borrower has full power, authority, and capacity to enter into
this Amendment, and this Amendment constitutes the legal, valid and binding
obligations of each Borrower, enforceable against it in accordance with its
terms.
B. No Event of Default under the Notes or any of the other Loan
Documents has occurred which continues unwaived by the Agent Bank, and no event
which with the passage of time, the giving of notice or both would constitute an
Event of Default, exists as of the date hereof.
C. The person executing this Amendment on behalf of each Borrower is
duly authorized to do so.
D. The representations and warranties made by each Borrower in any of
the Loan Documents are hereby remade and restated as of the date hereof.
E. Except as previously disclosed to the Agent Bank, there are no
material actions, suits, legal, equitable, arbitration or administrative
proceedings pending or threatened against any of the Borrowers, the adverse
determination of which could have a material adverse effect on the Loan
Documents, the business operations or financial condition of the Borrowers or
the ability of the Borrowers to fulfill their obligations under the Loan
Documents.
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE GUARANTOR. To
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induce the Agent Bank and the Banks to enter into this Amendment, the Guarantor
represents and warrants to the Agent Bank and the Banks as follows:
A. The Guarantor has full power, authority, and capacity to enter
into this Amendment, and this Amendment constitutes the legal, valid and binding
obligations of the Guarantor, enforceable against it in accordance with its
terms.
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B. The person executing this Amendment on behalf of the Guarantor is
duly authorized to do so.
C. The representations and warranties made by the Guarantor in any of
the Loan Documents to which it is party are hereby remade and restated as of the
date hereof.
D. There are no material actions, suits, legal, equitable,
arbitration or administrative proceedings pending or threatened against the
Guarantor, the adverse determination of which could have a material adverse
effect on the Loan Documents, the business operations or financial condition of
the Guarantor or the ability of the Guarantor to fulfill its obligations under
the Guaranty Agreement.
11. MISCELLANEOUS.
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A. Notices. All notices, demands, requests, consents, approvals and
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other communications required or permitted hereunder must be in writing and will
be effective upon receipt if delivered personally to such party, or if sent by
facsimile transmission with confirmation of delivery, or by nationally
recognized overnight courier service, or within seven (7) days after deposit in
the U.S. Mail to the address set forth below or to such other address as any
party may give to the other in writing for such purpose:
To the Agent Bank: Bank One, Kentucky, NA
416 West Jefferson Street
Louisville, Kentucky 40202
Attention: Todd D. Munson
To the Banks: Bank One, Kentucky, NA
416 West Jefferson Street
Louisville, KY 40202
Attn: Mr. Todd D. Munson
LaSalle National Bank
135 South LaSalle
Chicago, Illinois 60603
Attn: Ms. Susan Kaminski
Union Bank of California, N.A.
350 California Street, 6th Floor
San Francisco, California 94104
Attn: Ms. Gail Fletcher
To the Borrowers: BT Holdings, Inc.
c/o Group Financial Partners, Inc.
455 South Fourth Avenue, Suite 350
Louisville, KY 40202
Attention: President
Bell Technologies, Inc.
6120 Hanging Moss Road
Orlando, FL 32807
Attention: President
Tube Turns Technologies, Inc.
2900 West Broadway
P.O. Box 32160
Louisville, KY 40232-2160
Attention: President
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Group Technologies Corporation
10901 Malcolm McKinley Drive
Tampa, Florida 33612
Attn: President
Metrum-Datatape, Inc
c/o Group Financial Partners, Inc.
455 South 4th Avenue, Suite 350
Louisville, KY 40202
Attn: President
To the Guarantor: Group Financial Partners, Inc.
455 South 4th Avenue, Suite 350
Louisville, KY 40202
Attn: President
Except where the Guarantor or the Borrowers are expressly required by the
provisions hereof to give notice to all of the Banks it shall be sufficient
whenever the Guarantor or the Borrowers are required to give notice hereunder
for the Guarantor or the Borrowers to give such notice to the Agent Bank.
B. Preservation of Rights. No delay or omission on the part of the
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Agent Bank to exercise any right or power arising hereunder will impair any such
right or power or be considered a waiver of any such right or power or any
acquiescence therein, nor will the action or inaction of the Agent Bank impair
any right or power arising hereunder. The Agent Bank's rights and remedies
hereunder are cumulative and not exclusive of any other rights or remedies which
the Agent Bank may have under other agreements, at law or in equity.
C. Illegality. In case any one or more of the provisions contained
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in this Amendment should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
D. Changes in Writing. No modification, amendment or waiver of any
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provision of this Amendment nor consent to any departure by any of the Borrowers
therefrom, will in any event be effective unless the same is in writing and
signed by the Agent Bank, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice to
or demand on Borrowers in any case will entitle the Borrowers to any other or
further notice or demand in the same, similar or other circumstance.
E. Counterparts. This Amendment may be signed in any number of
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counterpart copies and by the parties hereto on separate counterparts, but all
such copies shall constitute one and the same instrument.
F. Successors and Assigns. This Amendment will be binding upon and
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inure to the benefit of the Borrowers and the Agent Bank and their respective
heirs, executors, administrators, successors and assigns; provided, however,
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that none of the Borrowers may assign this Amendment in whole or in part without
the prior written consent of the Agent Bank and the Agent Bank at any time may
assign this Amendment in whole or in part, as provided in Section 12 of the Loan
Agreement.
G. Interpretation. In this Amendment, unless the Agent Bank and the
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Borrowers otherwise agree in writing, the singular includes the plural and the
plural the singular; words importing any gender include the other genders;
references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Amendment unless otherwise indicated; and references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications to such instruments, but only to
the extent such amendments and other modifications are not prohibited by the
terms of this Amendment. Section headings in this Amendment are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose. Unless otherwise specified in this Amendment, all
accounting terms shall be interpreted and all accounting determinations shall be
made in
9
accordance with GAAP. If this Amendment is executed by more than one party as
the Borrowers, the obligations of such persons or entities will be joint and
several.
H. Governing Law and Jurisdiction. This Amendment has been
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delivered to and accepted by the Agent Bank in Louisville, Kentucky. THIS
AMENDMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF KENTUCKY,
EXCLUDING ITS CONFLICT OF LAWS RULES. Each of the Borrowers hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court for the
county or judicial district where the Agent Bank's office indicated above is
located, and consent that all service of process be sent by nationally
recognized overnight courier service directed to the Borrowers at the Borrowers'
address set forth herein and service so made will be deemed to be completed on
the business day after deposit with such courier; provided that nothing
contained in this Amendment will prevent the Agent Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the
Borrowers individually, against any security or against any property of the
Borrowers within any other county, state or other foreign or domestic
jurisdiction. The Agent Bank and the Borrowers agree that the venue provided
above is the most convenient forum for both the Agent Bank and the Borrowers.
Each of the Borrowers waive any objection to venue and any objection based on a
more convenient forum in any action instituted under this Amendment.
I. Waiver of Jury Trial. EACH OF THE BORROWERS, THE BANKS AND THE
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AGENT BANK IRREVOCABLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AMENDMENT, ANY
DOCUMENTS EXECUTED IN CONNECTION WITH THIS AMENDMENT OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. EACH OF THE BORROWERS AND THE AGENT BANK
ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
Each of the Borrowers and the Guarantor acknowledges that it has
read and understood all the provisions of this Amendment, including the waiver
of jury trial, and has been advised by counsel as necessary or appropriate.
IN WITNESS WHEREOF, witness the signatures of the parties hereto on the
date set forth above.
BANK ONE, KENTUCKY, NA
(as "Agent Bank" and a "Bank")
/s/ Todd D. Munson
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By Todd D. Munson
Title: Senior Vice President
LASALLE NATIONAL BANK
(as a "Bank")
/s/ Susan Kaminski
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By Susan Kaminski
Title:
UNION BANK OF CALIFORNIA, N.A.
(as a "Bank")
/s/ Gail Fletcher
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By Gail Fletcher
Title:
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BT HOLDINGS, INC.
(as a "Borrower")
/s/ Richard L. Davis
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By: Richard L. Davis, Treasurer
BELL TECHNOLOGIES, Inc.
(as a "Borrower")
/s/ Anthony C. Allen
------------------------------------------------
By: Anthony C. Allen, Assistant Treasurer
TUBE TURNS TECHNOLOGIES, INC.
(as a "Borrower")
/s/ Richard L. Davis
------------------------------------------------
By: Richard L. Davis, Treasurer
GROUP TECHNOLOGIES CORPORATION
(as a "Borrower")
/s/ David D. Johnson
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By: Vice President and CFO
METRUM-DATATAPE, INC.
(as a "Borrower")
/s/ Richard L. Davis
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By: Vice President
GROUP FINANCIAL PARTNERS, INC.
(as the "Guarantor")
/s/ Richard L. Davis
------------------------------------------------
By:
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