SECOND MODIFICATION AGREEMENT
Exhibit
10.15(a)
SECOND
MODIFICATION AGREEMENT
This
Second Modification Agreement (this “Amendment”)
is
executed as of August 29, 2005, by and among ▇▇▇▇▇ CONSULTING, INC., a Delaware
corporation (“Borrower”),
▇▇
▇▇▇▇▇▇ Chase Bank, NA, a national banking association (successor-in-interest
by
merger to Bank One, NA) (“Agent”),
as
administrative agent for itself and such other entities from time to time
designated as “Lenders” under the Loan Agreement (herein defined) (the
“Lenders”)
and
such Lenders .
W
I T
N E S S E T H:
WHEREAS,
Borrower, Agent and Lenders entered into that certain Second Amended and
Restated Credit Agreement, dated as of November 26, 2003, pursuant to which
Lenders agreed to make available to Borrower a credit facility (as heretofore
or
hereafter amended, the “Loan
Agreement”)
(each
capitalized term used herein, but not otherwise defined shall have the same
meaning given to it in the Loan Agreement); and
WHEREAS,
Borrower, Agent and Lenders entered into that certain First Modification
Agreement, dated as of November 12, 2004, pursuant to which the parties amended
certain provisions contained in the Loan Agreement; and
WHEREAS,
Borrower, Agent and Lenders desire to increase the credit facility evidenced
by
the Loan Agreement by the addition of Charter One Bank, N.A. as a Lender (the
“New
Lender”)
and
amend the Loan Agreement as more particularly set forth herein; and
NOW,
THEREFORE, in consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are all hereby acknowledged, Borrower, Agent
and
the Lenders hereby covenant and agree as follows:
ARTICLE
I - FACILITY INCREASE
Section
1.1. New
Lender.
By its
execution of this Agreement, New Lender is hereby added to the Loan Agreement
as
a Lender, and (i) confirms that it has received a copy of the Loan Agreement
and
the other Loan Documents, together with copies of any financial statements
requested by New Lender and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement, (ii) agrees that it will, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
at it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, (iii)
appoints and authorizes the Agent to take such action as agent on its behalf
and
to exercise such powers under the Loan Documents as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto, (iv) confirms that the execution and delivery of this Agreement by
New
Lender is duly authorized, (v) assumes all obligations of a Lender under the
Loan Agreement and the other Loan Documents and agrees that it will perform
in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (vi) confirms
that its payment instructions and notice instructions are as set forth in the
attached Schedule
1,
(vii)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are “plan assets” as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be “plan assets” under ERISA, and (viii) if applicable,
agrees to provide the forms prescribed by the Internal Revenue Service of the
United States certifying that New Lender is entitled to receive payments under
the Loan Documents without deduction or withholding of any United States federal
income taxes.
Section
1.2. Commitments;
Notes.
As of
the date of this Amendment, the Commitments of the Lenders are as set forth
on
the amended Commitment Schedule attached hereto and Borrower shall execute
promissory notes, in the forms attached as Exhibit
E-2
to the
Loan Agreement, in favor of the Lenders in the respective amounts set forth
on
the Commitment Schedule. New Lender shall fund its Pro Rata Share of the
outstanding amount of the Loans to Agent, who shall distribute such funds to
the
other Lenders to reflect the new Commitments as evidenced hereby.
Section
1.3. Representations
and Warranties.
Borrower
hereby represents and warrants to Agent and to Lenders that (i) all
representations and warranties made by Borrower in the Loan Agreement as of
the
date thereof are true and correct as of the date hereof, as if such
representations and warranties were recited herein in their entirety and
(ii) Borrower is not in default of any covenant or agreement contained in
the Loan Agreement.
Section
1.4. Facility
Fee.
In
consideration of the commitment of the New Lender, Borrower agrees to pay to
New
Lender a facility commitment fee in the amount of $10,000, which amendment
fee
is intended as reasonable compensation for the commitment of the New Lender
hereunder, and for no other purpose.
ARTICLE
II - MISCELLANEOUS
Section
2.1. Conditions
Precedent.
As
conditions precedent to closing this Amendment (i) Borrower, Agent, each Lender
and Guarantor, shall have executed and delivered to Agent this Agreement, (ii)
Borrower shall have paid to New Lender the facility commitment fee provided
for
in Section 1.4 above.
Section
2.2. Continuing
Effect.
Except
as modified and amended hereby, the Loan Agreement and other Loan Documents
are
and shall remain in full force and effect in accordance with their
terms.
Section
2.3. Binding
Agreement.
This
Amendment shall be binding upon, and shall inure to the benefit of, the parties’
respective representatives, successors and assigns.
Section
2.4. Nonwaiver
of Events of Default.
Neither
this Amendment nor any other document executed in connection herewith
constitutes or shall be deemed (a) a waiver of, or consent by Agent or any
Lender to, any default or event of default which may exist or hereafter occur
under any of the Loan Documents, (b) a waiver by Agent or any Lender of any
of Borrower’s obligations under the Loan Documents, or (c) a waiver by
Agent or any Lender of any rights, offsets, claims, or other causes of action
that Lender may have against Borrower.
Section
2.5. No
Defenses.
Borrower, by its execution of this Amendment, hereby declares that to its
knowledge, it has no set-offs, counterclaims, defenses or other causes of action
against Agent or any Lender arising out of the Loan Documents, any documents
mentioned herein or otherwise.
Section
2.6. Payment
of Expenses.
Borrower agrees to pay to Agent the reasonable attorneys’ fees and expenses of
Agent’s counsel and other expenses incurred by Agent in connection with this
Amendment.
Section
2.7. Counterparts.
This
Amendment may be executed in several counterparts, all of which are identical,
each of which shall be deemed an original, and all of which counterparts
together shall constitute one and the same instrument, it being understood
and
agreed that the signature pages may be detached from one or more of such
counterparts and combined with the signature pages from any other counterpart
in
order that one or more fully executed originals may be assembled.
Section
2.8. Choice
of Law.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF ILLINOIS, EXCEPT TO THE EXTENT FEDERAL LAWS PREEMPT THE LAWS OF
THE
STATE OF ILLINOIS.
Section
2.9. Entire
Agreement.
This
Amendment, together with the other Loan Documents, contain the entire agreements
between the parties relating to the subject matter hereof and thereof. This
Amendment and the other Loan Documents may be amended, revised, waived,
discharged, released or terminated only by a written instrument or instruments,
executed by the party against which enforcement of the amendment, revision,
waiver, discharge, release or termination is asserted. Any alleged amendment,
revision, waiver, discharge, release or termination which is not so documented
shall not be effective as to any party.
THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE
PARTIES RELATED TO THE SUBJECT MATTER HEREIN CONTAINED AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN
WITNESS WHEREOF, this Amendment is executed effective as of the date first
written above.
BORROWER:
▇▇▇▇▇
CONSULTING, INC., a Delaware corporation
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇
Print
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
President
▇▇▇
▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.
▇.
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
and
▇▇▇▇
▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
AGENT:
▇▇
▇▇▇▇▇▇
Chase Bank, NA, a national banking association, as Agent
By:
/s/
J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print
Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Senior
Vice President
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
LENDERS:
JPMorgan
Chase Bank,
NA, a national banking association
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print
Name: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior
Vice President
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
LASALLE
BANK NATIONAL ASSOCIATION,
a
national banking association (f/k/a LaSalle National Bank)
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Assistant Vice President
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
THE
FROST
NATIONAL BANK, a national banking association
By:
/s/ ▇▇▇▇▇▇▇▇▇ Stove
Print
Name: ▇▇▇▇▇▇▇▇▇ Stove
Title:
Vice President
▇▇▇▇
▇.
▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
MB
FINANCIAL BANK, N.A., a national banking association
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
First Vice President
▇▇▇▇
▇.
▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
FIFTH
THIRD BANK-CHICAGO
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
Fifth
Third Bank-Chicago
1701
Golf
Road
Tower
1
MD GRLM9G
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇▇▇, Vice President
Telephone:
▇▇▇ ▇▇▇-▇▇▇▇
FAX:
▇▇▇
▇▇▇-▇▇▇▇
CHARTER
ONE BANK, N.A.
By:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Senior Vice President
Charter
One Bank, N.a.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
CONSENT
OF GUARANTOR
The
undersigned Guarantor hereby (a) acknowledges its consent to the changes
effected by this Agreement, (b) ratifies and confirms all terms and
provisions of the Unlimited Guaranty dated January 15, 1999, (c) agrees that
such Unlimited Guaranty is and shall remain in full force and effect with
respect to the Loans, as increased and amended hereby, (d) acknowledges
that there are no claims or offsets against, or defenses or counterclaims to,
the terms and provisions of and the obligations created and evidenced by such
Unlimited Guaranty, and (e) reaffirms all agreements and obligations under
such
Unlimited Guaranty with respect to the Loan Agreement, the Notes, the Loans
and
all other documents, instruments or agreements governing, securing or pertaining
to the Loans, as the same may be modified and increased by this
Agreement.
EXECUTED
as of this 4th day of August, 2005.
GUARANTOR:
▇▇▇▇▇,
INC., a Delaware corporation
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Print
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
President
▇▇▇
▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.
▇.
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
and
▇▇▇▇
▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
Commitment
Schedule
|
Lender
|
Revolving
Commitment
|
Commitment
Percentage
|
|
▇▇
▇▇▇▇▇▇ Chase Bank, N.A.
|
$26,401,650
|
29.663%
|
|
LaSalle
Bank, National Association
|
16,001,000
|
17.978%
|
|
Fifth
Third Bank - Chicago
|
15,000,000
|
16.853%
|
|
Frost
National Bank
|
12,000,750
|
13.483%
|
|
Charter
One Bank
|
10,000,000
|
11.235%
|
|
MB
Financial Bank, N.A.
|
9,600,600
|
10.787%
|
|
Total:
|
$89,004,000
|
100.000%
|
Schedule
1
Information
Regarding Charter One Bank, N.A.
Credit
Contact:
Name:
▇▇▇▇▇▇
Lacayo_______
Telephone No.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇)
▇▇▇-▇▇▇▇_ Telex
No.:
_______________
Answerback
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Key
Operations Contacts:
Primary
Secondary
Booking
Installation: Booking
Installation:
Name:
_Curtis
▇▇▇▇▇ Name:
▇▇▇
▇▇▇▇▇▇
Telephone
No.: ▇▇▇.▇▇▇.▇▇▇▇
Telephone
No.: ▇▇▇.▇▇▇.▇▇▇▇
Fax
No.:
▇▇▇.▇▇▇.▇▇▇▇
Fax No.: ▇▇▇.▇▇▇.▇▇▇▇
Telex
No.: _______________ Telex
No.: ___________________
Answerback
email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Answerback
email: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Payment
Information:
(Payment) Wire
Funds to:
Citizens
Bank
ABA#
▇▇▇-▇▇▇-▇▇▇
Beneficiary:
COB Parti Purchased
ACCT#
4500000134
Ref:
▇▇▇▇▇ Consulting, INC.
Commitment
fees:
Charter
One Bank, N.A.
ABA
▇▇▇▇▇▇▇▇▇
BENEFICIARY:
Commercial Loan Operations
BENEFICIARY
NUMBER: 45-00000096
SPECIAL
INSTRUCTIONS: Credit GL #369520 RC# 8007600
Other
Instructions: Reference: ▇▇▇▇▇ Consulting, Inc.
3965584v.4