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EXHIBIT 10.53
FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
AND WAIVER
This FIRST AmendMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
(this "Amendment") is entered into as of September 30, 1999, among ENTERPRISE
PROFIT SOLUTIONS CORPORATION, a Delaware corporation (the "Company"), EPS
SOLUTIONS CORPORATION, a Delaware corporation, certain other affiliates of the
Company, the several lending institutions party to the Credit Agreement referred
to below (each a "Lender" and, collectively, the "Lenders"), and Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association), as administrative agent for the Lenders (in such capacity, the
"Agent").
WHEREAS, the Company, the Guarantors, the Lenders and the Agent entered
into an Amended and Restated Credit Agreement dated as of April 1, 1999 (as in
effect as of the date of this Amendment, the "Credit Agreement"); and
WHEREAS, the Company has requested that the Majority Lenders agree to
certain amendments to the Credit Agreement, and provide certain waivers in
connection therewith, and the Majority Lenders have agreed to such request,
subject to the terms and conditions of this Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each term used herein
(including in the Recitals hereof and in the Consent and Agreement of Guarantors
attached hereto) which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement.
(b) Each reference to "this Amendment", "hereof", "hereunder", "herein"
and "hereby" and each other similar reference contained in the Credit Agreement,
and each reference to "the Credit Agreement" and each other similar reference in
the other Loan Documents, shall from and after the Effective Date refer to the
Credit Agreement as amended hereby.
(c) The rules of interpretation set forth in Section 1.02 of the Credit
Agreement shall be applicable to this Amendment.
2. Amendments to Credit Agreement. Subject to the terms and conditions hereof,
the Credit Agreement is amended as follows, effective as of the date of
satisfaction of the conditions set forth in Section 5 (the "Effective Date"):
(a) Amendments to Article I of the Credit Agreement.
(1) A new definition of "Availability Reduction Period" shall be
inserted in proper alphabetical order as follows:
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"Availability Reduction Period" means the period from and after the
"Effective Date" of the First Amendment until the earlier of (a) the
Revolving Termination Date and (b) the earlier of (i) the date on which
the Company requests in writing that the Availability Reduction Period
be terminated and delivers to the Agent and the Lenders a Compliance
Certificate executed by a Responsible Officer of Holdings and the
Company demonstrating (A) compliance by Holdings with subsection 7.18(a)
for the fiscal quarter ending December 31, 1999 (such compliance to be
demonstrated without giving effect to the financial covenant amendments
or to the Waived Defaults, in each case, for the quarter ending December
31, 1999, set forth in the First Amendment) and (B) compliance by the
Company with subsections 7.18(b), 7.18(c), 7.18(d), 7.18(e) and 7.18(f)
for the fiscal quarter ending December 31, 1999 (such compliance to be
demonstrated without giving effect to the financial covenant amendments
or to the Waived Defaults, in each case, for the quarter ending December
31, 1999, set forth in the First Amendment), and (ii) the date on which
the Company delivers to the Agent and the Lenders a Compliance
Certificate executed by a Responsible Officer of Holdings and the
Company demonstrating (A) compliance by Holdings with subsection 7.18(a)
for the fiscal quarter ending March 31, 2000 (such compliance to be
demonstrated after fully giving effect to the First Amendment) and (B)
compliance by the Company with subsections 7.18(b), 7.18(c), 7.18(d),
7.18(e) and 7.18(f) for the fiscal quarter ending March 31, 2000 (such
compliance to be demonstrated after fully giving effect to the First
Amendment), which Compliance Certificate shall be accompanied by a
written statement of a Responsible Officer of the Company certifying
that the Company and each of its Subsidiaries is in compliance with each
other covenant and agreement of such Person set forth in the Credit
Agreement and the other Loan Documents to which it is a party and that
the Availability Reduction Period is terminated.
(2) A new definition of "First Amendment" shall be inserted in
proper alphabetical order as follows:
"First Amendment" means the First Amendment to Amended and Restated
Credit Agreement and Waiver dated as of September 30, 1999, among the
Company, Holdings, certain of their affiliates, the Lenders party
thereto and the Agent."
(3) The definition of "Permitted Acquisition" shall be amended by
(A) deleting the word "and" immediately preceding clause (h), (B) replacing the
period at the end of such definition with a semicolon, and (C) adding a new
clause (i) at the end of such definition as follows:
"and (i) during the Availability Reduction Period, no proceeds of any
Loan may be used directly or indirectly for all or any part of the
consideration for such Acquisition."
(4) The definition of "Significant Acquisition" shall be amended and
restated as follows:
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"Significant Acquisition" means (a) any Acquisition by Holdings, the
Company or any Subsidiary in respect of which cash or cash equivalents
and/or assumption and/or incurrence of Indebtedness exceeding
$10,000,000 in the aggregate constitutes all or a portion of the
consideration therefor, (b) any Acquisition by Holdings, the Company or
any Subsidiary at any time that cash or cash equivalents and/or
assumption and/or incurrence of Indebtedness exceeding $20,000,000 in
the aggregate has constituted (or, immediately after giving effect to
such Acquisition, shall have constituted) all or a portion of the
consideration for all Acquisitions by Holdings, the Company and its
Subsidiaries consummated in the then current fiscal year, and (c) during
the Availability Reduction Period, any Acquisition by Holdings, the
Company or any Subsidiary."
(b) Amendment to Article 2 of the Credit Agreement. Subsection 2.01(b)
is amended by amending and restating the proviso set forth in that subsection as
follows:
"provided, however, that, after giving effect to any Borrowing of
Revolving Loans, (i) the aggregate principal amount of all outstanding
Revolving Loans shall not at any time exceed (A) during the Availability
Reduction Period, the lesser of (1) $62,000,000 and (2) the aggregate
Revolving Commitments, and (B) at any other time, the aggregate
Revolving Commitments, and (ii) the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate principal
amount of all Term Loans outstanding at such time, shall not at any time
exceed the Aggregate Commitment."
(c) Amendments to Article VII of the Credit Agreement.
(1) Subsection 7.04(d) is amended by inserting an additional proviso
immediately before the semicolon at the end of such subsection as follows:
", and provided further that during the Availability Reduction Period
any such Acquisition shall be financed solely from the proceeds of the
issuance of junior capital satisfactory to the Majority Lenders"
(2) Subsection 7.05(h) is amended and restated as follows:
"(h) unsecured Indebtedness of the Company or any Subsidiary not
exceeding (i) during the Availability Reduction Period, an additional
$500,000 in the aggregate at any time outstanding for all such
Indebtedness incurred after the "Effective Date" of the First Amendment,
and (ii) at any other time, $5,000,000 in the aggregate at any time
outstanding for all such Indebtedness."
(3) Subsection 7.10(d) is amended by amending and restating clause
(i) thereof as follows:
"(i) from time to time in an amount not to exceed $5,000,000 in the
aggregate in any fiscal year on account of actual corporate overhead expenses of
Holdings, provided that no distribution by the Company to Holdings shall be
permitted under this clause (i) during the Availability Reduction Period,"
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(4) Subsection 7.10(d) is further amended by inserting immediately
before the comma at the end of clause (ii)(A) the following proviso:
", provided that no distribution by the Company to Holdings shall be
permitted under this clause (ii)(A) during the Availability Reduction
Period except for the Company's agreed share under the Tax Sharing
Agreement of actual cash taxes paid by Holdings"
(5) Subsection 7.10(d) is further amended by inserting in the
proviso at the end of clause (iii) immediately after the words "provided that no
distribution by the Company to Holdings shall be permitted under this clause
(iii)" the following additional text:
"(A) during the Availability Reduction Period or (B)"
(6) Section 7.14 is amended and restated as follows:
"7.14 Capital Expenditures. Holdings and the Company shall not, and
shall not suffer or permit any Subsidiary to, make any expenditures for fixed or
capital assets, including obligations under capital leases, in excess of (a)
$4,500,000 on a consolidated basis for the period from July 1, 1999, through
December 31, 1999, (b) $2,000,000 on a consolidated basis for the fiscal quarter
ending March 31, 2000, (c) $8,000,000 on a consolidated basis in fiscal year
2000 and (d) $6,000,000 in fiscal year 2001 and in any fiscal year thereafter."
(7) Subsection 7.18(a) (captioned "Maximum Holdings Leverage Ratio")
is amended by adding a proviso immediately before the period at the end of
clause (ii) as follows:
"provided that, unless the Availability Reduction Period shall have been
terminated pursuant to clause (b)(i) of the definition thereof, Holdings
shall be permitted to have a Holdings Leverage Ratio for the fiscal
quarter ending March 31, 2000, of not greater than 4.00 to 1.00"
(8) Subsection 7.18(c) (captioned "Maximum Company Leverage Ratio")
is amended by adding a proviso immediately before the period at the end of
clause (ii) as follows:
"provided that, unless the Availability Reduction Period shall have been
terminated pursuant to clause (b)(i) of the definition thereof, the
Company shall be permitted to have a Company Leverage Ratio for the
fiscal quarter ending March 31, 2000, of not greater than 2.50 to 1.00"
(9) Subsection 7.18(e) (captioned "Minimum Quarterly EBITDA") is
amended and restated as follows:
"(e) Minimum Quarterly EBITDA. The Company shall not permit (i)
EBITDA for each of the fiscal quarters listed below, measured on a consolidated
basis for the Company and its Subsidiaries in accordance with GAAP, to be less
than (A) $11,000,000 for the fiscal quarter ending September 30, 1999, (B)
$21,000,000 for the fiscal quarter ending December 31, 1999, (C) $12,000,000 for
the fiscal quarter ending March 31, 2000, and (D) $10,000,000 for each of the
fiscal quarters ending June 30, 2000, September 30, 2000 and
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December 31, 2000; and (ii) EBITDA for each rolling period of four fiscal
quarters ending on December 31, 1999, and thereafter, measured on a consolidated
basis for the Company and its Subsidiaries in accordance with GAAP, to be less
than $43,000,000 for each such rolling four-quarter period."
3. Defaults and Waiver.
(a) For purposes of this Waiver, the "Waived Defaults" shall mean:
(1) the Events of Default that have arisen, or are anticipated to
arise, solely as a consequence of a breach of the negative covenant set forth at
subsection 7.18(a) of the Credit Agreement for each of the fiscal quarters ended
or ending June 30, 1999, September 30, 1999, and December 31, 1999;
(2) the Events of Default that have arisen, or are anticipated to
arise, solely as a consequence of a breach of the negative covenant set forth at
subsection 7.18(c) of the Credit Agreement for each of the fiscal quarters ended
or ending June 30, 1999, September 30, 1999, and December 31, 1999; and
(3) the Event of Default that has arisen solely as a consequence of
a breach of the negative covenant set forth at subsection 7.18(e)(i) (as in
effect prior to giving effect to this Amendment) for the fiscal quarter ended
June 30, 1999.
(b) Subject to and upon the terms and conditions hereof, the Majority
Lenders hereby waive the Waived Defaults.
(c) Nothing contained herein shall be deemed a waiver of (or otherwise
affect the Agent's or the Lenders' ability to enforce) any other Default or
Event of Default, including without limitation (i) any Default or Event of
Default as may now or hereafter exist and arise from or otherwise be related to
the Waived Defaults (including without limitation any cross-default arising
under the Credit Agreement by virtue of any matters resulting from the Waived
Defaults), and (ii) any Default or Event of Default arising at any time after
the Effective Date and which is similar in type to any of the Waived Defaults.
4. Representations and Warranties. Each Loan Party hereby represents and
warrants to the Agent and the Lenders as follows:
(a) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing (or would result from the amendment of
the Credit Agreement contemplated hereby).
(b) The execution, delivery and performance by such Loan Party of this
Amendment and the Credit Agreement (as amended by this Amendment) have been duly
authorized by all necessary corporate and other action and do not and will not
require any registration with, consent or approval of, or notice to or action
by, any Person (including any Governmental Authority) in order to be effective
and enforceable.
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(c) This Amendment, the Credit Agreement (as amended by this Amendment)
and each other Loan Document to which such Loan Party is a party constitute the
legal, valid and binding obligations of such Loan Party, enforceable against it
in accordance with their respective terms.
(d) All representations and warranties of such Loan Party contained in
the Credit Agreement are true and correct (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date and except that this
subsection (d) shall be deemed instead to refer to the last day of the most
recent month, quarter and year for which financial statements have then been
delivered in respect of the representation and warranty made in subsection
5.11(a) of the Credit Agreement and to take into account any amendments to the
Schedules to the Credit Agreement and other disclosures made in writing by
Holdings or the Company to the Agent and the Lenders after the Closing Date and
approved by the Agent and the Majority Lenders).
(e) Such Loan Party is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Lenders or any other Person.
(f) Such Loan Party's obligations under the Credit Agreement and under
the other Loan Documents to which it is a party are not subject to any defense,
counterclaim, set-off, right of recoupment, abatement or other claim.
5. Conditions of Effectiveness.
(a) The effectiveness of Sections 2 and 3 of this Amendment shall be
subject to the satisfaction of each of the following conditions precedent:
(1) The Agent shall have received from each Loan Party and the
Majority Lenders a duly executed original (or, if elected by the Agent, an
executed facsimile copy) of this Amendment.
(2) The Agent shall have received the consent of each Guarantor in
its capacity as such to the execution and delivery hereof by the Company.
(3) The Agent shall have received evidence of payment by the Company
of all fees, costs and expenses due and payable as of the Effective Date
hereunder and under the Credit Agreement, including any fees arising under or
referenced in Section 6 of this Amendment and any costs and expenses payable
under Section 7(g) of this Amendment (including the Agent's Attorney Costs, to
the extent invoiced on or prior to the Effective Date).
(4) The Agent shall have received from the Company an Update
Certificate (as to each Loan Party), substantially in the form of Exhibit H to
the Credit Agreement, dated the Effective Date and otherwise in form and
substance satisfactory to the Agent, covering the period from the last day of
the "Reporting Period" covered by the most recent Update Certificate furnished
to the Agent and the Lenders pursuant to subsection 6.01(f) of the Credit
Agreement through the Effective Date.
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(5) The Agent shall have received evidence satisfactory to it that
all actions necessary or, in the opinion of the Agent or the Lenders, desirable
to perfect and protect the first priority Lien created by the Collateral
Documents, and to enhance the Agent's ability to preserve and protect its
interests in and access to the Collateral, have been taken, including, without
limitation, (i) the Agent's receipt of acknowledgment copies of all UCC-l
financing statements filed, registered or recorded to perfect the security
interests of the Agent for the benefit of the Lenders, or other evidence
satisfactory to the Agent that there has been filed, registered or recorded (or
arrangements made with a reputable filing service to file, register or record)
all financing statements and other filings, registrations and recordings
necessary and advisable to perfect the Liens of the Agent for the benefit of the
Lenders in accordance with applicable law, (ii) the Agent's receipt of written
advice relating to such Lien and judgment searches as the Agent shall have
requested, and such termination statements or other documents as may be
necessary to confirm that the Collateral is subject to no other Liens in favor
of any Persons (other than Permitted Liens), and (iii) the Agent's receipt of
all certificates and instruments representing the Pledged Shares, together with
stock transfer powers executed in blank as the Agent or the Lenders may specify.
(6) The Agent shall have received from each of the Company and
Holdings a copy of the resolutions passed by the board of directors of such
Person, certified as of the Effective Date by the Secretary or an Assistant
Secretary of such Person, authorizing the execution, delivery and performance of
this Amendment and the Credit Agreement (as amended by this Amendment).
(7) The Agent shall have received an opinion of counsel to the
Company and addressed to the Agent and the Lenders, dated the Effective Date, in
form and substance satisfactory to the Agent.
(8) The Agent shall have received all other documents it or any
Lender may reasonably request relating to any matters relevant hereto, all in
form and substance satisfactory to the Agent and each Lender.
(9) The representations and warranties in Section 4 of this
Amendment shall be true and correct on and as of the Effective Date with the
same effect as if made on and as of the Effective Date.
(b) For purposes of determining compliance with the conditions specified
in subsection 5(a) above, each Lender that has executed this Amendment shall be
deemed to have consented to, approved or accepted, or to be satisfied with, each
document or other matter either sent, or made available for inspection, by the
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
(c) From and after the Effective Date, the Credit Agreement is amended
as set forth herein. Except as expressly amended pursuant hereto, the Credit
Agreement shall remain unchanged and in full force and effect and is hereby
ratified and confirmed in all respects.
(d) The Agent will notify the Company and the Lenders of the occurrence
of the Effective Date.
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6. Fees. The Company shall pay to the Agent the fees set forth in that certain
letter agreement dated as of September 14, 1999, by and between the Company and
the Agent. Such fees shall be due and payable by the Company on the Effective
Date.
7. Miscellaneous.
(a) Each Loan party acknowledges and agrees that the execution and
delivery by the Agent and the Lenders of this Amendment shall not be deemed to
create a course of dealing or an obligation to execute similar waivers or
amendments under the same or similar circumstances in the future.
(b) This Amendment shall be binding upon and inure to the benefit of the
Company, Holdings and the other Guarantors, the Lenders and the Agent and their
respective successors and assigns.
(c) This Amendment shall be governed by and construed in accordance with
the law of the State of New York, provided that the Agent and the Lenders shall
retain all rights arising under Federal law.
(d) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Lender or
a Loan Party shall bind such Person with the same force and effect as the
delivery of a hard copy original. Any failure by the Agent to receive the hard
copy executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Agent.
(e) This Amendment contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein. This Amendment
supersedes all prior drafts and communications with respect hereto. This
Amendment may not be amended except in accordance with the provisions of Section
10.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment, the
Credit Agreement or the other Loan Documents.
(g) The Company agrees to pay or reimburse BofA (including in its
capacity as Agent) upon demand, for all reasonable costs and expenses (including
reasonable Attorney Costs) incurred by BofA (including in its capacity as Agent)
in connection with the development, preparation, negotiation, execution and
delivery of this Amendment.
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[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered in San Francisco, California by their proper and
duly authorized officers as of the day and year first above written.
ENTERPRISE PROFIT SOLUTIONS CORPORATION
By:
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Name:
Title:
EPS SOLUTIONS CORPORATION
By:
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Name:
Title:
THE SUBSIDIARIES LISTED ON ANNEX I
By:
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Name:
Title:
BANK OF AMERICA, N.A. (formerly known as
Bank of America National Trust and Savings
Association), as Agent and as a Lender
By:
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Name: Kevin Leader
Title: Managing Director
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ANTARES CAPITAL CORPORATION
By:
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Title:
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ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
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Title:
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COMERICA WEST INCORPORATED
By:
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Title:
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GREEN TREE FINANCIAL SERVICING CORPORATION
By:
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Title:
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HELLER FINANCIAL, INC.
By:
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Title:
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ING (U.S.) CAPITAL LLC
By:
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Title:
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THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING Capital Advisors LLC,
as Investment Advisor
By:
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Title:
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KEY CORPORATE CAPITAL, INC.
By:
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Title:
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KEYPORT LIFE INSURANCE COMPANY
By: STEIN ROE & FARMHAM INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE
COMPANY
By:
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Title:
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ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim Investments, Inc.
as its Investment Manager
By:
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Title:
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PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.
as its Investment Manager
By:
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Title:
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SEQUILS - Pilgrim I, Ltd.
By: Pilgrim Investments, Inc.
as its Investment Manager
By:
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Title:
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SRF TRADING, INC.
By:
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Title:
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STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By:
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Title:
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TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
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Title:
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CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, in its capacity as a Guarantor, acknowledges
that its consent to the foregoing First Amendment to Amended and Restated Credit
Agreement and Waiver (the "Agreement") is not required, but each of the
undersigned nevertheless does hereby consent to the foregoing Agreement and to
the documents and agreements referred to therein. Nothing herein shall in any
way limit any of the terms or provisions of the Guaranty of the undersigned or
the Collateral Documents executed by the undersigned in the Agent's and the
Lenders' favor, or any other Loan Document executed by the undersigned (as the
same may be amended from time to time), all of which are hereby ratified and
affirmed in all respects.
GUARANTORS:
EPS SOLUTIONS CORPORATION,
as a Guarantor
By:
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Name:
Title:
THE SUBSIDIARIES LISTED ON ANNEX I, as Guarantors
By:
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Name:
Title:
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Annex I
Bay Group International, Inc.
Hindert & Associates, Inc.
Hindert Agency, Inc.
Benefit Designs, Inc.
Benefit Designs International, Inc.
Benefit Funding Services Group, LLC
Benefit Funding Services, LLC
Better Communications, Inc.
TSL Services, Inc.
D'Accord Holdings Inc.
D'Accord Group, Inc.
D'Accord Incorporated
D'Accord Financial Services, Inc.
D'Accord International Services, Inc.
D'Accord Asset Management, Inc.
Dimension Funding, Inc.
Disbursement Recovery Services, L.L.C.
D.L.D. Insurance Brokers, Inc.
FFR Holding Co., Inc.
First Financial Resources Management Co. Inc.
First Financial Resources, Inc.
FFP Insurance Services, Inc. (Nevada)
FFP Insurance Services, Inc. (California)
Holden Corporation
Lease Audit & Analysis Services, Inc.
National Benefits Consultants, L.L.C.
National Healthcare Recovery Services, L.L.C.
National Recovery Services, LLC
National RevMax Consultants, LLC
The Oxxford Consulting Group, Inc.
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Partners Consulting Services, Inc.
Pritchett Publishing Company
Sigma International, Inc.
The Dublin Group, Inc.
The Structured Settlements Company, Inc.
The Wadley-Donovan Group, Ltd.
Young, Clark & Associates, Inc.
Praxis Development LC
The Praxis Group, Inc.
The Praxis Institute, Inc