a5464572ex10_2.htm


    Exhibit
      10.2

    


    


    ACQUISITION
      FACILITY AMENDMENT TO

    AMENDED
      AND RESTATED CREDIT AGREEMENT

    


    This
      Acquisition Facility Amendment to Amended and Restated Credit Agreement is
      made
      as of August 1, 2007, amending that certain Credit Agreement (as defined below)
      between CASTLE PINES CAPITAL LLC, a Delaware limited liability company
      (“CPC”), having its chief executive office located at 9785 Maroon Circle,
      Suite 110, Englewood, Colorado  80112 and INX INC., a Delaware
      corporation, (“INX” or “Reseller”), having its chief executive
      office located at 6401 South West Freeway, Houston,
      Texas  77074.

     

    WHEREAS,
      Reseller and CPC have entered in to the Credit Agreement originally dated
      December 27, 2005, as amended and restated pursuant to that certain Amended
      and
      Restated Credit Agreement dated April 30, 2007 (the “Credit Agreement”)
      between CPC and Reseller, providing the availability for credit to finance
      inventory on behalf of Reseller (the “Credit Facility”); and

     

    WHEREAS,
      Reseller has requested that CPC extend credit to permit Reseller to
      effect Approved Acquisitions; and

     

    WHEREAS,
      CPC is willing to accommodate such request for credit upon and subject to the
      terms, conditions and provisions of this Acquisition Amendment and the
      Documents;

     

    NOW,
      THEREFORE, in consideration of the premises and for other good and
      valuable consideration, the receipt and sufficiency of which are hereby
      acknowledged, Reseller and CPC hereby mutually covenant and agree as
      follows:

     

    SECTION
      1.    Definitions.  All
      capitalized terms not otherwise defined herein shall have the meanings given
      to
      such terms in the Credit Agreement.

     

    SECTION
      2.    Amendments to Credit
      Agreement.

     

    A.           Section
      2 of the Credit Agreement, Financing Terms, is amended by inserting
      the
      following new subsection (h)
      “Approved Acquisition Facility”:

    “(h)  Approved
      Acquisition Facility.

     

    (i)    Subject
      to the terms and conditions set forth in this Agreement and so long as no
      Default has occurred and is continuing, during the Acquisition Period, CPC
      agrees to make loans to Reseller (individually, an “Acquisition Loan” and
      collectively, the “Acquisition Loans”) as Reseller may from time to time
      request for Approved Acquisitions for an amount not to exceed 80% of the
      Purchase Price of each proposed Target.  The Acquisition Commitment is
      in addition to the Line of Credit provided for in Section 1 of the Agreement
      and
      has no effect upon Reseller’s ability to borrower under such Line of
      Credit.  Within the limits set forth in this Agreement, Reseller may
      borrow under this Section 2.(h)(i), pay under Section 2.(h)(vii),
      (viii) and (ix), and reborrow at any time during the Acquisition Period
      under this Section 2.(h).  All Acquisition Loans not paid prior
      to the last day of the Acquisition Period, together with all accrued and unpaid
      interest thereon and all fees and other amounts owing by Reseller to CPC shall
      be due and payable on the Termination Date.

     

    (ii)   If
      the Acquisition Commitment on any date should be less than the total Acquisition
      Loans outstanding on such date (other than by reason of the termination of
      the
      Acquisition Commitment or failure to renew such Acquisition Commitment),
      Reseller shall be automatically required (without demand or notice of any kind
      by the Lender, all of which are hereby expressly waived by the Reseller) to
      immediately repay the Acquisition Loans in an amount sufficient to reduce the
      amount of the Total Acquisition Loans outstanding to an amount equal to or
      less
      than the total Acquisition Commitment.

     

    (iii)  Reseller
      may, in its sole discretion, at any time or from time to time upon three (3)
      Business Days' prior written notice to CPC, terminate the Acquisition Commitment
      in its entirety or reduce the Acquisition Commitment by a minimum amount of
      $25,000 or any larger multiple of $25,000 of the unused portions of the
      Acquisition Commitment provided, however, that any such termination or reduction
      shall be permanent and Reseller shall have no right to thereafter reinstate
      or
      increase, as the case may be, the Acquisition
      Commitment.  Simultaneously with each reduction of the Acquisition
      Commitment pursuant to this Section 2.(h)(iii), the aggregate amount of
      such reduction shall be automatically applied to any outstanding indebtedness
      consisting of Acquisition Loans as may be requested by Reseller.

     

    (iv)   Unless
      previously terminated, the Acquisition Commitment shall terminate on the
      Termination Date.

     

    (v)   The
      Reseller shall give notice to CPC by 10:00 a.m. (Colorado time) on the Business
      Day of each Acquisition Loan to be made to Reseller to finance an Approved
      Acquisition, previously approved, and which request shall be irrevocable and
      shall specify the following:

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    (A)  The
      date of such
      Acquisition Loan, which must be a Business Day during the Acquisition
      Period;

     

    (B)   The
      location and
      number of the Reseller’s account or account of seller of Target to which funds
      are to be disbursed; and

     

    (C)   A
      reasonably
      detailed calculation of the financial covenants, if any, applicable to the
      Reseller after giving effect to such Acquisition Loan.

     

    (vi)   So
      long as no Default has occurred and is continuing, each Acquisition Loan shall
      bear interest on the outstanding principal amount thereof for each day until
      the
      maturity of the Acquisition Loan (whether by reason of acceleration or
      otherwise) at a rate per annum equal to the Prime Rate plus 2%, which interest
      shall be computed on the basis of a year of 360 days and paid for the actual
      number of days elapsed (including the first day but excluding the last
      day).  Such interest shall be due and payable monthly in arrears on
      the last Business Day of each month, commencing the first month after the
      extension of each Acquisition Loan, and ending at the earlier of (i) the
      maturity of each Acquisition Loan or (ii) the Termination Date.  From
      and after the maturity of the Acquisition Loan, whether by reason of
      acceleration or otherwise, all unpaid amounts of such Acquisition Loan shall
      bear interest, due and payable on demand, for each day until paid at a rate
      per
      annum equal to the Default Rate.

     

    (vii)  Principal
      on each Acquisition Loan shall be due and payable in such
      consecutive  monthly installments as shall be determined by CPC in
      conjunction with each funding and in any event will not be less than 36 months
      and not more than 48 months, commencing on the thirteenth month after such
      Acquisition Loan and continuing for such time as is determined by CPC, but
      in no
      event, later than the Termination Date, upon which all outstanding principal
      and
      interest together with any unpaid fees shall be remitted to CPC.

     

    (viii)   Reseller
      may prepay all at any time or any portion from time to time of the unpaid
      principal balance of all or any Acquisition Loan prior to maturity provided
      that
      contemporaneously with each such prepayment, the Reseller shall pay all accrued
      and unpaid interest due as of such date of prepayment.

     

    (ix)  In
      addition to the regularly scheduled payments due on the Acquisition Loan
      provided for in Section 2(h)(vii) above and any voluntary prepayments
      made by the Reseller under Section 2.(h)(viii) above, the Reseller hereby
      covenants and agrees to pay to CPC as mandatory prepayments on each Acquisition
      Loan in inverse order of maturity, within one hundred twenty (120) days after
      the end of each fiscal year of Reseller (commencing with the fiscal year of
      Reseller ending December 31, 2008), an amount equal to Twenty-Five Percent
      (25%)
      of Reseller’s Excess Cash Flow (if any) for such fiscal year.  All
      such amounts paid by Reseller pursuant to this subsection (ix) shall be applied
      first against any interest that may be delinquent and if no interest in then
      delinquent, then to any principal outstanding under such Acquisition
      Loans.

     

    (x)  CPC
      agrees to use commercially reasonable best efforts to issue a determination
      to
      Reseller as to whether each proposed Acquisition will be approved as a potential
      Approved Acquisition within 10 Business Days of CPC’s receipt of a request by
      Reseller.

     

    (xi)  Reseller
      agrees to pay CPC (A) a non-refundable Acquisition Commitment fee of one-eighth
      of one percent of the Acquisition Commitment which will be due and payable
      in
      full upon the execution of the Acquisition Amendment, and (B) a non-refundable
      fee of seven-eighths of one percent of each Acquisition Loan which will be
      due
      and payable in full upon CPC’s extension of each Acquisition Loan.

     

    (xii)  Notwithstanding
      any provision contained in this Agreement to the contrary, CPC shall have no
      obligation to make any Acquisition Loan under this Agreement with respect to
      an
      Approved Acquisition unless CPC shall have received all or any portion of the
      following as may be designated by CPC with respect to each Acquisition
      Loan:

     

    (A)           written
      notice requesting an Acquisition Loan as provided in subsection (v)
      above;

    (B)           a
      payoff letter (including wire transfer instructions and release of security
      interests and liens upon receipt of payment) with respect to obligations of
      the
      Reseller to the seller of the Target;

    (B)           the
      Target Information Package;

    (C)           a
      duly executed a Collateral Assignment of Contract Rights with respect to each
      Purchase Agreement (which must be in form and substance satisfactory to CPC)
      in
      which Reseller assigns it rights in such Purchase Agreement to CPC and is duly
      executed by the Reseller;

    (D)           evidence
      satisfactory to CPC that the Property to be acquired as a result of the Approved
      Acquisition shall be subject to CPC’s first priority security interest in all
      such Property (including but not limited to a separate security agreement to
      be
      executed by any Subsidiary created by Reseller or a Subsidiary of Reseller
      with
      respect to the proposed Target and results of searches of UCC records under
      name
      of seller and of the Target);

     

    
      
        
        

      

      
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    (E)           a
      guaranty duly executed by any Person with respect to the proposed Target as
      may
      be required by CPC;

    (F)           such
      amendments to the Credit Agreement as may be required by CPC and WFDF, including
      but not limited to revision of existing financial covenants or addition of
      new
      financial covenants by Reseller or any Subsidiary;

    (G)           evidence
      satisfactory to CPC that the performance by the Reseller of its obligations
      under each Purchase Agreement shall not (1) violate any of its organizational
      documents, (2) violate any applicable law, statute, rule or regulation or (3)
      conflict with, or result in a default or event of default under, any material
      agreement of the Reseller; 

    (H)           pro
      forma income statements and balance sheets of Reseller and each Subsidiary
      as of
      the closing date of the Approved Acquisition after giving effect to the
      Acquisition then contemplated for the twelve month period immediately following
      the closing date of the Approved Acquisition;

    (I)           evidence
      satisfactory to CPC that the Reseller has received all requisite governmental,
      regulatory, corporate, and required third party authorization, consents and
      approvals necessary to execute and deliver the Purchase Agreement and consummate
      the transactions contemplated thereunder; 

    (J)           completion
      by CPC of its field audits of the Reseller and the Subsidiaries, with the
      results of such field audit being satisfactory to CPC;

    (K)           evidence
      sufficient to CPC to determine that all material financial, accounting, and
      tax
      aspects of the transaction contemplated by this Agreement are acceptable to
      CPC
      in its sole discretion;

    (L)           evidence
      satisfactory to CPC that no extraordinary judicial relief such as an injunction
      or temporary restraining order has been entered which, in the judgment of CPC,
      would prohibit the making of the Acquisition Loan hereunder, as well as the
      absence of any litigation or other governmental proceeding that could reasonably
      be expected to result in such prohibition or otherwise have a Material Adverse
      Effect;

    (M)           evidence
      satisfactory to CPC that no Material Adverse Effect shall have occurred since
      the most recent financial statements delivered to CPC by Reseller;

    (N)           evidence
      reasonably satisfactory to CPC that all material documents to be executed and
      delivered in connection with the acquisition of each Target shall have been
      delivered to CPC in final form which shall be reasonably satisfactory to CPC
      and
      that the acquisition of each Target shall have closed (subject only to the
      funding of the acquisition consideration);

    (O)           evidence
      satisfactory to CPC that both immediately before and immediately after giving
      effect to such Acquisition Loan, no Default or Event of Default under this
      Agreement shall have occurred and be continuing; and

     

    (P)           evidence
      satisfactory to CPC that all of the representations and warranties made by
      Reseller under this Agreement shall be true and correct in all material respects
      on and as of the date of such Acquisition Loan as if made on and as of the
      date
      of such Acquisition Loan.

     

    B.           Section
      17 of the Credit Agreement, Terms and Termination, is amended by
      deleting the existing Section 17 in its entirety and replacing same with the
      following:

     

    “Terms
      and Termination.  The term of this Agreement, unless sooner
      terminated in accordance with this Agreement, shall terminate on August 1,
      2009
      (subject to renewal as provided below, the “Termination Date”), provided,
      however, that (a) this Agreement shall automatically renew for one (1) year
      periods from year to year thereafter unless terminated by the Reseller upon
      written notice at least 90 days prior to the current Termination Date; (b)
      CPC
      may terminate this Agreement immediately (i) by written notice to Reseller
      if
      Reseller shall lose or relinquish any right to sell or deal in any Financed
      Inventory or (ii) upon a Default; or (c) CPC may terminate (i) the Inventory
      Facility and the Revolving Credit Facility at any time by at least 60 days
      prior
      written notice by CPC to Reseller, and (ii) the Approved Acquisition Facility
      at
      any time by at least 120 days prior written notice by CPC to Reseller; provided
      however, where Reseller requests further time be provided within either the
      60
      day notice period or 120 day notice period, as applicable, CPC will agree to
      an
      extension of 30 more days.  Upon termination of this Agreement, all
      Indebtedness owed to CPC shall become immediately due and payable without notice
      or demand.  Upon any termination, Reseller shall remain liable to CPC
      for all Indebtedness to CPC, including without limitation interest, fees,
      charges and expenses arising prior to or after the effective date of
      termination, and all of CPC's rights and remedies and its security interest
      shall continue until all Indebtedness to CPC is indefeasibly paid in full and
      all obligations of Reseller are performed.”

     

    C.           Section
      25 of the Credit Agreement, Definitions, is amended by inserting
      the following new definitions in appropriate alphabetical order:

     

    “Acquisition
      means any transaction or series of related transactions, consummated on or
      after
      the date of this Agreement, by which a Person directly or indirectly (a)
      acquires all or substantially all of the assets comprising one or more business
      units of any other Person, whether through purchase of assets, merger or
      otherwise or (b) acquires (in one transaction or as the most recent transaction
      in a series of transactions) at least (i) a majority (in number of votes) of
      the
      stock and/or other securities of a corporation having ordinary voting power
      for
      the election of directors (other than stock and/or other securities having
      such
      power only by reason of the happening of a contingency), (ii) a majority (by
      percentage of voting power) of the outstanding membership interests of a limited
      liability company, (iii) a majority (by percentage of voting power) of the
      outstanding general partnership interests and majority of limited partnership
      interests of a partnership or (iv) a majority of the ownership interests in
      any
      organization or entity other than a corporation, limited liability company
      or
      partnership.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    Acquisition
      Amendment means that certain Acquisition Facility Amendment to Amended and
      Restated Credit Agreement dated August 1, 2007, between CPC and Reseller
      pursuant to which CPC has agreed to provide the Acquisition Commitment to
      Reseller.

     

    Acquisition
      Commitment means the extension of credit by CPC to Reseller up to a maximum
      aggregate amount of Ten Million Dollars ($10,000,000).

     

    Acquisition
      Periodmeans the period commencing on the date of this Acquisition Amendment
      and ending on the Termination Date.

     

    Approved
      Acquisition means a proposed Acquisition by Reseller which enables Reseller
      to fund the acquisition cost for one hundred percent (100%) of the equity or
      substantially all of the assets of a Person (each, a “Target”) from a
      third party seller which meets the following conditions and
      criteria:

     

    (a)  all
      material aspects of the Target must be acceptable to CPC in its sole
      discretion;

     

    (b)  the
      total purchase price due at closing of a Purchase Agreement, which includes
      all
      cash stock and all tangible property paid at closing pursuant to such Purchase
      Agreement and not any delayed payment, if any (the “Purchase Price”) of
      the Target shall not exceed a multiple of six times the EBITDA of such Target
      (as may be adjusted based upon the agreement of the Reseller and CPC) for the
      twelve month period immediately preceding the anticipated closing date for
      such
      Acquisition;

     

    (c)  Reseller
      shall have delivered to CPC an analysis and a copy of any report presented
      to
      the equity holders of Reseller (the “Target Information Package”), which
      Target Information Package shall include, but not be limited to (i) a history
      of
      the Target, (ii) biographies of such members of the management of the Target
      as
      may be requested by CPC, (iii) copies of the Purchase Agreement in draft and
      execution form, (iv) a summary of all liabilities of the Target (including
      contingent liabilities) both before and as anticipated at the closing of the
      Acquisition of such Target, (v) an analysis of Property of the Target, including
      but not limited to such UCC, tax and judgment lien searches as may be requested
      by CPC, (vi) projections of the anticipated business and financial performance
      of the Target, updated as may be requested by CPC, and (vii) such other
      information as may be requested by CPC.

     

    EBITDA
      means, for the period in question, the sum of (a) Net Income during such period
      plus (b) to the extent deducted in determining such Net Income, the sum
      of (i) Interest Expense during such period, plus (ii) any Federal, state,
      local and/or foreign income taxes paid by such Person in cash during such
      period, plus (iii) all depreciation and amortization expenses of such
      Person during such period, plus (iv) any extraordinary losses during such
      period, plus (vi) any losses from the sale or other disposition of
      Property other than in the ordinary course of business during such period
minus (c) to the extent added in determining such Net Income, the sum of
      (i) any extraordinary gains during such period and (ii) any gains from the
      sale
      or other disposition of Property other than in the ordinary course of business
      during such period, all determined in accordance with GAAP.

     

    Excess
      Cash Flow means, for the period in question, the sum of (a) EBITDA during
      such period minus (b) the sum of (i) all federal, state, local and/or foreign
      income taxes paid or payable by Reseller and its Subsidiaries in cash during
      such period, (ii) all obligations for interest paid or payable by Reseller
      and
      its Subsidiaries on all indebtedness in cash during such period (including,
      without limitation, the interest portion of capitalized lease obligations paid
      or payable in cash and the interest portion of any deferred payment obligation
      paid or payable in cash during such period), (iii) the aggregate amount of
      all
      principal payments required to be made by Reseller and its Subsidiaries on
      all
      indebtedness during such period (including the principal portion of payments
      in
      respect of capitalized leases but excluding principal payments on the
      Acquisition Loans), (iv) capital expenditures made by Reseller and its
      Subsidiaries during such period (net of any indebtedness incurred by Reseller
      or
      any such Subsidiary (other than Acquisition Loans) to finance such capital
      expenditure), and (v) the aggregate amount of all voluntary principal
      prepayments made by Reseller and its Subsidiaries on any long term indebtedness
      during such period (excluding principal payments on the Acquisition Loans),
      all
      determined on a consolidated basis and in accordance with GAAP.

     

    Interest
      Expense means, for the period in question, without duplication, all gross
      interest expense of such Person (including, without limitation, all commissions,
      discounts and/or related amortization and other fees and charges owed by such
      Person with respect to letters of credit, the net costs associated with any
      Swap
      Contract of such Person, capitalized interest expense and the interest portion
      of any deferred payment obligation) for such period, all determined in
      accordance with GAAP.

     

    
      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

    

     

    Net
      Income means, for the period in question, the after-tax net income (or loss)
      of such Person during such period, determined in accordance with
      GAAP.

     

    Property
      means any interest in any kind of property or asset, whether real, personal
      or
      mixed, or tangible or intangible.  Properties mean the plural
      of Property.  For purposes of the Credit Agreement as amended, the
      Reseller and each Subsidiary shall be deemed to be the owner of any Property
      which it has acquired or holds subject to a conditional sale agreement,
      financing lease or other arrangement pursuant to which title to the Property
      has
      been retained by or vested in some other Person for security
      purposes.

     

    Purchase
      Agreement shall mean each asset purchase agreement, merger agreement or
      equity purchase agreement between the seller of a Target and the
      Reseller.

     

    Purchase
      Price has the meaning set forth within the definition of Approved
      Acquisition.

     

    Swap
      Contract shall mean (a) any and all rate swap transactions, basis swaps,
      credit derivative transactions, forward rate transactions, commodity swaps,
      commodity options, forward commodity contracts, equity or equity index swaps
      or
      options, bond or bond price or bond index swaps or options or forward bond
      or
      forward bond price or forward bond index transactions, interest rate options,
      forward foreign exchange transactions, cap transactions, floor transactions,
      collar transactions, currency swap transactions, cross-currency rate swap
      transactions, currency options, spot contracts or any other similar transactions
      or any combination of any of the foregoing (including any options to enter
      into
      any of the foregoing), whether or not any such transaction is governed by or
      subject to any master agreement, and (b) any and all transactions of any kind,
      and the related confirmations, which are subject to the terms and conditions
      of,
      or governed by, any form of master agreement published by the International
      Swaps and Derivatives Association, Inc., any International Foreign Exchange
      Master Agreement, or any other master agreement (any such master agreement,
      together with any related schedules, a ‘Master Agreement’), including any
      such obligations or liabilities under any Master Agreement.

     

    Target
      has the meaning set forth within the definition of Approved
      Acquisition.”

     

    D.           Section
      25 of the Credit Agreement, Definitions, is amended by deleting
      the existing definition, Indebtedness, and replacing it with the following
      in
      appropriate alphabetical order:

     

    “Indebtedness
      means all present and future indebtedness and obligations of Reseller to CPC
      arising under this Agreement as amended, including but not limited to the
      Acquisition Amendment, of whatever kind, now due or to become due, absolute
      or
      contingent, and whether joint, several or join and several.”

     

    SECTION
      3.Full Force and Effect.  Except as specifically
      amended hereby, all of the terms and conditions of the Credit Agreement as
      amended, the Documents, and all other documents, instruments and agreements
      executed and/or delivered in connection therewith, shall remain in full force
      and effect, and the same are hereby ratified and confirmed.  This
      Acquisition Amendment, the Credit Agreement, and the other Documents constitute
      legal, valid and binding obligations of Reseller and are enforceable against
      Reseller in accordance with their respective terms.

     

    SECTION  4.Counterparts.  This
      Acquisition Amendment may be executed in one or more counterparts, each of
      which
      shall be deemed to be an original, and all of which shall constitute together
      but one and the same agreement.

     

    SECTION  5.Governing
      Law.  This Acquisition Amendment shall be binding upon and inure
      to the benefit of the parties hereto and their respective successors and assigns
      and shall be governed by and construed in accordance with the laws of the State
      of Colorado.

     

    [signature
      page(s) to follow]

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, the Reseller has caused this Acquisition Amendment to
      Credit Agreement to be executed by its authorized officers as of the day and
      year first above written.

     

    


    INX
      INC.

    


    ATTEST:

    By:   _/s/
      Brian
      Fontana___________

    __/s/
      Joseph E.
      Horzepa_________                                                                              
Name: Brian Fontana

    Joseph
      E.
      Horzepa,
      Secretary                                                                                    Title:
      Vice-President - CFO

    


    


    


    


    ATTEST:

    


    _/s/
      James H. Long_________________

    James
      H.
      Long, Chief Executive Officer

    


    


    CASTLE
      PINES CAPITAL
      LLC

    


    


    By:   _/s/
      Michael
      Gallagher____________

    Name:  Michael
      Gallagher

    Title:
      Managing Partner

    


    


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