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EXHIBIT 10.4.2
AMENDMENT NO. 3 TO SECURITIES PURCHASE AGREEMENT
This Amendment Number 3 ("Amendment No. 3") to the Securities
Purchase Agreement (the "SPA"), dated as of October 21, 1996, among FULCRUM
DIRECT, INC. (the "Company"), a Delaware corporation, WHITNEY SUBORDINATED DEBT
FUND, L.P. ("WSDF"), a Delaware limited partnership, and WHITNEY EQUITY
PARTNERS, L.P., a Delaware limited partnership ("WEP" and together with WSDF,
the "Purchasers") is entered into as of May 7, 1997. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to such terms in the
SPA.
W I T N E S S E T H:
WHEREAS, the Company and WSDF wish to amend the definition of
"Senior Indebtedness" in Section 1.1 and modify the financial covenants
contained in Section 9.4 of the SPA.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
1. The definition of "Senior Indebtedness" in Section 1.1 of
the SPA is amended and restated to read in its entirety as follows:
"Senior Indebtedness" means all Indebtedness senior
to the Indebtedness represented by the Note of the Company currently outstanding
or incurred in the future pursuant to any borrowing by the Company from any bank
or institutional lender not affiliated with Xxxxxxxx, Budoff or the Company and
any renewals, extensions, refinancings or refundings thereof; provided, that it
shall not include any capital lease obligations and Indebtedness represented by
the Note).
2. Section 9.4 of the Loan Agreement is amended and restated
to read in its entirety as follows:
"9.4 Limitations on Indebtedness. The Company shall
not, and shall not cause, suffer or permit any of its Subsidiaries to,
directly or indirectly, collectively and in the aggregate, issue,
assume or otherwise incur any Indebtedness, other than: (a)
Indebtedness under the Transaction Documents; (b) Senior Indebtedness,
up to an aggregate principal amount of $25,000,000 and any other
Indebtedness, up to an aggregate principal amount of $5,000,000;
provided, however, that Senior Indebtedness may exceed an aggregate
principal amount of $25,000,000 if the ratio of total Indebtedness to
total share capital (including retained earnings) of the Company as
reflected on the Company's most recent quarterly balance sheet, is less
than 2.5 to 1.0; and provided, further, that under no circumstances
shall Senior Indebtedness exceed $30,000,000; (c) Indebtedness listed
on Schedule 5.27; (d) non-current liabilities for post-employment
healthcare and other insurance benefits; (e) trade payables and accrued
expenses, in each case arising in the ordinary course of business; (f)
Indebtedness secured by a Lien permitted under Section 9.5; (g)
refinancings, refundings or extensions of the foregoing; provided, that
any such
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refinancings, refundings or extensions shall not (i) exceed the
principal amount refinanced, refunded or extended, (ii) shorten the
maturity (or weighted average life to maturity) of such Indebtedness,
(iii) increase the interest rate applicable to such Indebtedness, (iv)
facilitate the exercise or enforcement of any remedies of any obligee
of such Indebtedness in respect of any default or event default
thereunder, or (v) result in any amendments or modifications of any of
the subordination provisions applicable to such Indebtedness; and (h)
Indebtedness existing at the time of acquisition on assets or a company
acquired by the Company.
3. Counterparts. This Amendment No. 2 may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
4. Entire Agreement. This Amendment No. 2, together with the
SPA and the exhibits and schedules thereto and the other Transaction Documents,
is intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein and
therein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein or therein. This Amendment No. 2,
together with the SPA and the exhibits and schedules thereto, and the other
Transaction Documents supersede all prior agreements and understandings between
the parties with respect to such subject matter. Except to the extent
specifically set forth herein, the SPA shall remain in full force and effect and
shall not be deemed amended or superseded in any respect.
5. Incorporation by Reference. Article 11 of the SPA (other
than Sections 11.5 and 11.12) is incorporated herein by reference as if included
herein.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be executed and delivered by their respective officers
hereunto duly authorized as of the date first above written.
FULCRUM DIRECT, INC.
By:____________________________________
Name:
Title:
WHITNEY SUBORDINATED DEBT FUND, L.P.
By:____________________________________
Name:
Title:
WHITNEY EQUITY PARTNERS, L.P.
By: X.X. Xxxxxxx Equity Partners LLC
Its general Partner
By:____________________________________
Name:
Title:
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