EXHIBIT 10.11
AMENDMENT
This Amendment, dated as of September 30, 1999, is made and entered into
between Radyne ComStream Inc. (the 'Borrower') and CitiBank, N.A. (the 'Bank').
WITNESSETH
WHEREAS, the Borrower and the Bank have entered into that certain
Uncommitted Line of Credit Facility Letter Agreement, dated as of May 18, 1998,
and amended by the Amendment dated as of September 21, 1998 (as so amended, the
'Agreement'); and
WHEREAS, the Borrower and the Bank desire to amend the Agreement in
certain respects;
NOW THEREFORE, in consideration of the premise and the mutual agreements,
representations and warranties set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Definitions and References. Capitalized terms not otherwise
defined herein shall have the meanings attributed thereto in the Agreement. In
addition, as used herein:
'Amendment Effective Date' means the date upon which the conditions
specified in Section 5 below shall have been satisfied.
SECTION 2. Amendments. Subject to Section 5 hereof, on and as of the
Amendment Effective Date, the Agreement shall be amended as follows:
(a) The reference in the second sentence of the introductory paragraph
to 'September 29, 1999' is amended to read 'September 28, 2000'.
(b) The reference in the first sentence of paragraph 1 to
'$20,000,000' is amended to read '$20,500,000'.
(c) The third sentence of paragraph 1 is amended in its entirety to
read as follows:
'In connection with our making this uncommitted facility available
to you, you agree to pay us a non-refundable fee equal to 1.0% per
annum, or $205,000, upon your acceptance hereof and at each
anniversary of the renewal hereof if this facility is renewed.'
(d) Clause (g) of paragraph 10 is amended in its entirety to read as
follows: '(g) beginning the first quarter ending March 31, 2000,
maintain a maximum financial leverage (defined as total
liabilities over tangible net worth, as such terms are defined in
accordance with generally accepted accounting principles) of not
more than 2:1.'
(e) Paragraph 12 is amended by adding an additional clause (h)
immediately after clause (g), reading as follows:
'; or (h) your failure to increase, on or before March 31, 2000,
your tangible net worth (as such term is defined in accordance
with generally accepted accounting principles) by at least
$5,000,000 through the issuance and sale of previously authorized
but unissued shares of your common stock, from your tangible net
worth on December 31, 1999.'
(f) The reference in the upper right hand corner of the Note to
'September 21, 1998' is amended to read 'September 30, 1999'.
SECTION 3. Representations True; No Default. The Borrower represents and
warrants that:
(a) The representations and warranties contained in paragraph 9 of the
Agreement are correct on and as of the date of this Amendment as though made on
and as of the date hereof.
(b) No event has occurred and is continuing, or would result from the
execution and delivery of this Amendment, which constitutes an Event of Default
or which, with the giving of notice and/or the passage of time, would constitute
an Event of Default.
SECTION 4. Legal Obligation. The Borrower represents and warrants to the
Bank that this Amendment has been duly authorized, executed and delivered on its
behalf, and that the Agreement, as amended hereby, constitutes a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
SECTION 5. Conditions Precedent. The amendment of the Agreement provided
herein is subject to the following conditions precedent:
(a) a counterpart of this Amendment duly executed by you;
(b) certified copies of the resolutions of your Board of Directors
approving this Amendment and the new Note, and all other documents evidencing
necessary corporate action and governmental and other third party approvals, if
any, with respect to this Amendment and the new Note;
(c) a certificate of your Secretary certifying the names and true
signatures of your officers authorized to sign this Amendment and the new Note
and the other documents to be delivered hereunder and to request Advances
hereunder; and
(d) a letter of awareness executed by Singapore Technologies Pte Ltd. in
the form attached hereto as Exhibit B.
SECTION 6. Miscellaneous.
(a) Except as herein provided, the Agreement and all other documents
executed in connection therewith shall remain unchanged and in full force and
effect.
(b) The Agreement and this Amendment shall be read, taken and construed as
one and the same instrument.
(c) This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.
(d) All references in the Agreement and any other document executed in
connection with the Agreement (including without limitation, the Note) to the
Agreement (including indirect references) shall mean and be a reference to the
Agreement as amended hereby. All references in the Agreement and any other
document executed in connection with the Agreement (including without
limitation, the Note) to the Note (including indirect references) shall mean and
be a reference to the Note as amended hereby.
(e) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CITIBANK, N.A.
By: /s/ BRIGITTE X.X. XXXXX
---------------------------------
Name: Brigitte X.X. Xxxxx
Title: Vice President
Agreed and Accepted
RADYNE COMSTREAM INC.
By: /s/ Xxxxxx X. Fitting
___________________________________
Name: Xxxxxx X. Fitting
Title: President
EXHIBIT B
LETTER OF AWARENESS
We refer to the Uncommitted Line of Credit Facility Letter Agreements dated
September 30, 1999 of $20,500,000 facilities granted to Radyne ComStream, Inc.
('the Company') by Citibank, N.A., and would like to confirm the following:
1. The Company is an indirect subsidiary of Singapore Technologies Pte Ltd. As
of the current date, our subsidiaries, Stetsys US Inc., incorporated in the
United States of America, and Stetsys Pte Ltd., incorporated in Singapore,
directly own 11% and 79% of the issued common stock of the Company
respectively. Stetsys US Inc. is in turn a 100% subsidiary of Stetsys Pte
Ltd. We own 100% of Stetsys Pte Ltd.
2. We will use reasonable endeavors to ensure that the Company implements sound
commercial and financial practices such that it will be in a position to meet
the obligations that it incurs with any third-party in the ordinary course of
business, including those incurred under the aforementioned uncommitted lines
of credit and banking facilities.
3. We will give prior written notice of at least 60 days to Citibank, N.A. of
any divestment of shares by Stetsys US Inc., Stetsys Pte Ltd. and/or
ourselves in the Company, Stetsys US Inc. and Stetsys Pte Ltd., respectively.
For avoidance of doubt, no legally binding obligation or liability on our part,
whether primary or secondary, is intended to be created or assumed by the above
confirmation.
For Singapore Technologies Pte Ltd.
Yours faithfully,
By ___________________________________
Name: Xxx Xxxx Seong
Title:
By ___________________________________
Name: Boon Swan Foo
Title:
AMENDMENT
This Amendment, dated as of September 21, 1998, is made and entered into
between Radyne Corporation (the 'Borrower') and Citibank, N.A. (the 'Bank').
WITNESSETH
WHEREAS, the Borrower and the Bank have entered into that certain
Uncommitted Line of Credit Facility Letter Agreement, dated as of May 18, 1998
(the 'Agreement'); and
WHEREAS, the Borrower and the Bank desire to amend the Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
representations and warranties set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Definitions and References. Capitalized terms not otherwise
defined herein shall have the meanings attributed thereto in the Agreement. In
addition, as used herein:
'Amendment Effective Date' means the date upon which the conditions
specified in Section 5 below have been satisfied.
SECTION 2. Amendments. Subject to Section 5 hereof, on and as of the
Amendment Effective Date, the Agreement shall be amended as follows:
(a) The reference in the second sentence of the introductory paragraph to
'September 30, 1998' is amended to read 'September 29, 1999'.
(b) The reference in the first sentence of paragraph 1 to '$5,000,000' is
amended to read '$20,000,000'.
(c) The third sentence of paragraph 1 is amended in its entirety to read as
follows:
'In connection with our making this uncommitted facility available to
you, you agree to pay us a non-refundable fee equal to 1.0% per annum, or
$200,000, upon your acceptance hereof and at each anniversary of the
renewal hereof if this facility is renewed.'
(d) The third sentence of paragraph 2 is amended in its entirety to read as
follows:
'If we agree to make such an Advance, we will make such funds
available to you in same day funds by crediting your demand deposit account
number as you shall notify us from time to time.'
(e) Clause (g) of paragraph 10 is amended in its entirety to read as
follows:
'(g) maintain a maximum financial leverage (defined as total
liabilities over tangible net worth, as such terms are defined in
accordance with generally accepted accounting principles) of not more than
2:1.'
(f) The reference in clause (g) of paragraph 12 to '50%' is amended to read
'51%'.
(g) The reference in the upper left hand corner of the Note to
'U.S.$5,000,000.00' is amended to read 'U.S.20,000,000.00'.
(h) The reference in the upper right hand corner of the Note to 'May 18,
1998' is amended to read 'September 21, 1998'.
SECTION 3. Representations True; No Default. The Borrower represents and
warrants that:
(a) The representations and warrants contained in paragraph 9 of the
Agreement are correct on and as of the date of this Amendment as though made on
and as of the date hereof.
(b) No event has occurred and is continuing, or would result from the
execution and delivery of this Amendment, which constitutes an Event of Default
or which, with the giving of notice and/or the passage of time, would constitute
an Event of Default.
SECTION 4. Legal Obligation. The Borrower represents and warrants to the
Bank that this Amendment has been duly authorized, executed and delivered on its
behalf, and that the Agreement, as amended hereby, constitutes a legal, valid
and binding obligation of the Borrower, enforeceable against the Borrower in
accordance with its terms.
SECTION 5. Conditions Precedent. The amendment of the Agreement provided
herein is subject to the following conditions precedent:
(a) a counterpart of this Amendment duly executed by you;
(b) certified copies of the resolutions of your Board of Directors
approving this Amendment and the new Note, and all other documents evidencing
necessary corporate action and governmental and other third party approvals, if
any, with respect to this Amendment and the new Note;
(c) a certificate of your Secretary or Assistant Secretary certifying the
names and true signatures of your officers authorized to sign this Amendment and
the new Note and the other documents to be delivered hereunder and to request
Advances hereunder;
(d) a letter of awareness executed by Singapore Technologies Pte Ltd. in
the form attached hereto as Exhibit B; and
(e) Singapore Technologies Pte Ltd. shall have made a new capital
contribution to the Borrower in connection with the acquisition of Comstream in
an amount greater than or equal to $16,000,000 from conversion of existing
shareholder loans.
SECTION 6. Miscellaneous.
(a) Except as herein provided, the Agreement and all other documents
executed in connection therewith shall remain unchanged and in full force and
effect.
(b) The Agreement and this Amendment shall be read, taken and construed as
one and the same instrument.
(c) This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.
(d) All references in the Agreement and any other document executed in
connection with the Agreement (including without limitation, the Note) to the
Agreement (including indirect references) shall mean and be a reference to the
Agreement as amended hereby. All references in the Agreement and any other
document executed in connection with the Agreement (including without
limitation, the Note) to the Note (including indirect references) shall mean and
be a reference to the Note as amended hereby.
(c) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be
deemed an original and all of which taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CITIBANK, N.A.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-In-Fact
Agreed and Accepted
RADYNE COMSTREAM INC.
By: /s/ Xxxxxx X. Fitting
___________________________________
Name: Xxxxxx X. Fitting
Title: President
LETTERHEAD OF CITIBANK, N.A. [CITIBANK LOGO]
May 18, 1998
Radyne Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxx Xxxx Xxxxx
Uncommitted Line of Credit Facility
Ladies and Gentlemen:
We are pleased to make available to Radyne Corporation ('YOU') a credit
facility for use solely for general corporate purposes on the terms set forth in
this letter agreement (as amended or otherwise modified from time to time, this
'AGREEMENT'). This credit facility is valid from the Effective Date (as defined
in paragraph 7) until September 30, 1998 (such date or the earlier termination
of this Agreement pursuant to paragraph 13 being the 'TERMINATION DATE').
1. We agree to consider from time to time, on the terms and conditions set
forth in this Agreement, your requests that we make advances ('ADVANCES') to you
in an aggregate, amount not to exceed $5,000,000 at any one time outstanding.
THIS LETTER IS NOT A COMMITMENT TO LEND BUT RATHER SETS FORTH THE PROCEDURES TO
BE USED IN CONNECTION WITH YOUR REQUESTS FOR OUR MAKING OF ADVANCES TO YOU FROM
TIME TO TIME ON OR PRIOR TO THE TERMINATION DATE AND, IF WE MAKE ADVANCES TO YOU
HEREUNDER, YOUR OBLIGATIONS TO US WITH RESPECT THERETO. In connection with our
making this uncommitted facility available to you, you agree to pay us a
non-refundable fee equal to 0.5% per annum, or $20,625, upon your acceptance
hereof and at each anniversary of the renewal hereof if this facility is renewed
provided however that if at the time of any such renewal, the financial leverage
contemplated by Paragraph 10(g) hereof is less than 1:1 then such fee will be
reduced to 0.375% per annum, or $20,625.
2. Each Advance shall be made upon your request to us, given not later than
2:00 P.M. (New York City time) three Business Days (as denied below) prior to
the date of any proposed Advance based on the Eurodollar Rate (as defined in
paragraph 4) (a 'EURODOLLAR RATE ADVANCE'), or not later than 11:00 A.M. (New
York City time) on the date of any proposed Advance based on a Quoted Rate (as
defined in paragraph 4) (a 'QUOTED RATE ADVANCE'), that you wish to borrow money
on a specified date (which shall be a day of the year on which banks are not
required or authorized by law to close in New York City ('BUSINESS DAY')), in a
specified amount (which, in the case of a Eurodollar Rate Advance, shall be in
the amount of $1,000,000 or an integral multiple thereof, and in the case of a
Quoted Rate Advance, shall be in the amount of $100,000 or an integral multiple
thereof) and for a specified interest period ('INTEREST PERIOD'), which
request shall also indicate whether such Advance is to accrue interest at the
Eurodollar Rate or a Quoted Rate. The duration of each Interest Period specified
by you shall be, with respect to Eurodollar Rate Advances, one, two or three
months, and with respect to
Quoted Rate Advances, a term requested by you and agreed to by us at the time of
your request for such Quoted Rate Advance, provided that (i) you may not select
any Interest Period that ends after the Termination Date; (ii) whenever the
last day of an Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur
on the next succeeding Business Day, provided that if such extension would cause
the last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next preceding
Business Day; and (iii) with respect to Eurodollar Rate Advances, whenever the
first day of any Interest Period occurs on a day of an initial calendar month
for which there is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months equal to the number
of months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month. If we agree to make such
Advance, we will make such funds available to you in same day funds by crediting
your demand deposit account no. _________ (the 'ACCOUNT') at our office at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
3. You shall repay the principal amount of each Advance on the earlier to
occur of the last day of the Interest Period for such Advance and the
Termination Date, together with accrued interest thereon. You may prepay any
Advance in whole or in part on any Business Day, provided that (i) you have
given us at least three Business Days' irrevocable written notice of such
prepayment (and on the date specified for such prepayment in such notice, you
shall prepay the amount of the Advance to be prepaid, together with accrued
interest thereon to the date of prepayment and any other amounts payable by you
pursuant to paragraph 18), and (ii) each partial prepayment of a Eurodollar
Rate Advance shall be in a principal amount of at least $1,000,000.
4. You shall pay interest on the unpaid principal amount of each Advance
from the date of such Advance until such principal amount shall be paid in full,
in the case of a Eurodollar Rate Advance, at a rate equal to the Eurodollar Rate
for the Interest Period for such Advance, and in the case of a Quoted Rate
Advance, at a rate equal to the Quoted Rate for such Advance, in each
case payable in arrears on the last day of the Interest Period for such
Advance and, if such Interest Period is longer than three months, on each day
that occurs during such Interest Period every three months from the first day of
such Interest Period. 'EURODOLLAR RATE' means, for any Interest Period for any
Eurodollar Rate Advance, an interest rate per annum equal to the rate per annum
obtained by dividing (i) the sum of (x) the rate per annum at which deposits in
U.S. Dollars are offered by our principal office in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to such Advance and for a period equal to such Interest Period, plus (y)
1%, by (ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage (as defined below) for such Interest Period. 'EURODOLLAR RATE RESERVE
PERCENTAGE' for any interest Period for any Eurodollar Rate Advance means the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (having the meaning
assigned to such term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time) (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on the Eurodollar Rate Advances is determined) having a term equal
to such Interest Period. 'QUOTED RATE' means, for each Quoted Rate Advance, a
rate quoted by us
and agreed to by you for an Interest Period for such Advance requested by
you and agreed to by us pursuant to paragraph 2. 'BASE RATE' means a fluctuating
rate of interest announced publicly by us in New York, New York from time to
time as our base rate. Any overdue amount of principal, interest or other amount
payable hereunder shall bear interest, payable on demand, at the Base Rate
plus 2% per annum.
5. If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to us of agreeing to make or making, funding or maintaining Advances, then
you shall from time to time, upon our demand, pay to us additional amounts
sufficient to compensate us for such increased cost. In addition, if we
determine that compliance with any law or regulation or any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law) after the date hereof affects or would affect the amount of
capital required or expected to be maintained by us or any corporation
controlling us and that the amount of such capital is increased by or based upon
the existence of Advances hereunder, then, upon our demand, you shall
immediately pay to us, from time to time as specified by us, additional amounts
sufficient to compensate us or such corporation in the light of such
circumstances, to the extent that we reasonably determine such increase in
capital to be allocable to the existence of the Advances hereunder. A
certificate as to such amounts submitted to you by us shall be conclusive and
binding for all purposes, absent manifest error. Notwithstanding any other
provision of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for us to
fund or maintain Advances made hereunder, then, on notice thereof and demand
therefor made by us, each Advance will automatically, upon such demand, convert
into an Advance accruing interest at the Base Rate. Any Advance accruing
interest at the Base Rate shall continue to be an 'Advance' for the purpose of
this Agreement.
6. You shall make each payment (whether in respect of principal interest,
facility fee or otherwise) hereunder, irrespective of any right of counterclaim
or set-off, not later than 2:00 P.M. (New York City time) on day when due in
U.S. dollars to us at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in same day
funds. You hereby authorize us, if and to the extent payment owed to us is not
made when due hereunder, to charge from time to time against any or all of your
accounts with us or any of our affiliates any amount so due. All computations of
interest and facility fees shall be made by us on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fee
is payable. Each determination by us of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error. Whenever any
payment hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest.
7. This Agreement shall become effective on and as of the first date (the
'EFFECTIVE DATE') on which we shall have received the following, in form and
substance satisfactory to us: (i) a counterpart of this Agreement duly executed
by you; (ii) a promissory note in the form attached hereto as Exhibit A (as
amended or otherwise modified from time to time, the 'NOTE') duly executed by
you; (iii) certified copies of the resolutions of your Board of Directors
approving this Agreement and the Note, and of all other documents evidencing
necessary corporate action and governmental and other third party approvals, if
any, with respect to this
Agreement and the Note; (iv) a certificate of your Secretary or Assistant
Secretary certifying the names and true signatures of your officers authorized
to sign this Agreement, the Note and the other documents to be delivered
hereunder and to request Advances hereunder ('DESIGNATED OFFICERS'); (v) a
letter of awareness executed by Singapore Technologies Pte Ltd. in the form
attached hereto as Exhibit B; and (vi) a letter of undertaking executed by
Stetsys US Inc. stating that: (a) it will not ask for repayment of the current
$5,100,000 intercompany loan extended to you, until you have increased your
share capital by at least $5,100,000, and (b) it will ensure that you increase
your share capital by at least $6,000,000 not later than September 30, 1998.
8. Each request by you for an Advance and the acceptance by you of the
proceeds of such Advance shall constitute a representation and warranty by you
that on the date of such Advanced the following statements are true:
(i) the representations and warranties contained in paragraph 9 are
correct on and as of the date of such Advance, before and after giving
effect to such Advance and to the application of the proceeds therefrom, as
though made on and as of such date (other than any such representations or
warranties that, by their terms, refer to a date other than the date of
such Advance), and
(ii) no event has occurred and is continuing, or would result from
such Advance or from the application of the proceeds therefrom, that
constitutes an Event of Default (as defined in paragraph 12) or a Default
(as defined in paragraph 10).
In addition, prior to making any Advance to you, you agree that you shall
deliver to us such documents, approvals and opinions as we may reasonably
request.
9. You represent and warrant as follows: (a) you are a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York; (b) execution, delivery and performance by you of of this Agreement
and the Note, and the consummation of the transactions contemplated hereby, are
within your corporate powers and authority, have been duly authorized by all
necessary corporate action, and do not contravene (i) your charter or by-laws or
(ii) any law or any contractual restriction binding on or affecting you; (c) no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for the due execution, delivery and performance by you of this
Agreement or the Note; (d) this Agreement and the Note have been duly executed
and delivered by you, and are your legal, valid and binding obligations
enforceable against you in accordance with their respective terms; (e) there
is no pending or threatened action, suit, investigation, litigation or
proceeding affecting you or your subsidiaries before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a material
adverse effect on the business, operations or condition (financial or
otherwise) of you and your subsidiaries taken as a whole, our rights and
remedies under this Agreement or the Note, or your ability to perform you
obligations under this Agreement or the Note, or (ii) purport to affect the
legality, validity or enforceability of this Agreement or the Note or the
consummation of the transactions contemplated hereby; and (f) no proceeds
of any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
10. So long as any Advance shall remain unpaid, you will (a) comply, and
cause each of your subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders; (b) pay and discharge, and cause
each of your subsidiaries to pay and
discharge, before the same shall become delinquent, all taxes, assessments and
governmental charges or levies imposed upon you or it or your or its property,
other than those being contested in good faith and by proper proceedings and as
to which appropriate reserves are being maintained; (c) preserve and maintain,
and cause each of your subsidiaries to preserve and maintain, your and its
corporate existence; (d) at any reasonable time and from time to time, permit us
to visit the properties of you and your subsidiaries, examine and make copies of
your and their books of account and records, and discuss you and their affairs,
finances and accounts with any of your or their officers, directors and
independent certified public accountants; (c) keep, and cause each your
subsidiaries to keep, proper books and records of account in accordance with
general accepted accounting principles in effect from time to time; (f) furnish
to us (i) as soon as available and in any event within 45 days after the end of
each of the first three quarters of each of your fiscal years, consolidated
balance sheets of you and your subsidiaries as of the end of such quarter and
consolidated statements of income and cash flows of you and your subsidiaries
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, duly certified by your chief financial officer as
having been prepared in accordance with generally accepted accounting
principles, (ii) as soon as available and in any event within 120 days after the
end of your fiscal years, a copy of the annual audit report for such year for
you and your subsidiaries, containing consolidated balance sheets of you and
your subsidiaries as of the end of such fiscal year and consolidated statements
of income and cash flows of you and your subsidiaries for such fiscal year, in
each case accompanied by an opinion of your independent certified public
accountants, (iii) as soon as possible and in any event within five days after
the occurrence of each Event of Default, and each event which would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both (a 'DEFAULT'), continuing on the date of such statement, a statement of
your chief financial officer setting forth details of such Event of Default or
Default and the action you have taken or propose to take with respect thereto,
(iv) promptly after the commencement thereof, notice of all actions and
proceedings affecting you or any of your subsidiaries of the type described in
paragraph 9(c); and (v) such other information respecting you or any of your
subsidiaries as we may from time to time reasonably request; and (g) from
September 30, 1998 through the termination date, (i) maintain a maximum
financial leverage (defined as total liabilities over tangible net worth, as
such terms are defined in accordance with generally accepted accounting
principles) of not more than 1:1; and (ii) maintain its tangible net worth, as
such term is defined in accordance with generally accepted accounting
principles, of not less than $5,000,000.
11. So long as any Advance shall remain unpaid, you will not create or
suffer to exist, or permit any of your subsidiaries to create or suffer to
exist, any lien, security interest or other encumbrance (a 'LIEN'), other than
(i) purchase money Liens in the ordinary course of business, (ii) Liens existing
on the Effective Date which you have disclosed to us, and (iii) Liens imposed by
law, such as materialmen's mechanics', carriers', workmen's and repairmen's
Liens and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30 days.
12. If any of the following events shall occur and be continuing ('EVENT OF
DEFAULT'): (a) you shall fail to pay any principal of any Advance when the same
becomes due and payable or you shall fail to pay any interest on any Advance or
make any other payment under this Agreement within three days of when such
amount is due and payable; or (b) any representation or warranty made by you
herein or by you (or any of your officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or (c) you
shall fail to perform or observe any term, covenant or agreement hereof
contained in
paragraph 11 or you shall fail to perform or observe any other item, covenant or
agreement hereof on your part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have been given
to you by us; or (d) you or any of your subsidiaries shall fail to pay any
principal of or premium or interest on any of your or your subsidiaries' debt
(as the case may be) that is outstanding in a principal amount of at least
$500,000 in the aggregate (but excluding debt outstanding hereunder), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such debt; or any
such debt shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such debt shall be required to be made, in each case prior to the stated
maturity thereof; or (e) you or any of your subsidiaries shall generally not pay
your or its debts as such debts become due, or shall admit in writing your or
its inability to pay your or its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against you or any of your subsidiaries seeking to adjudicate you or it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of you or it or your
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a custodian, receiver, trustee or other similar official for you
or it or for any substantial part of your or its property, and, in the case of
any such proceeding instituted against you or it (but not instituted by you or
it), either such proceeding shall remain undismissed or unstayed for a period of
30 days, or any of the actions sought in such proceeding (including without
limitation, the entry of an order for relief against, or the appointment of a
conservator, receiver, trustee, custodian or other similar official for you or
it or for any substantial part of your or its property) shall occur; or you or
any of your subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subparagraph (c); or (f) one or more judgments
or orders for the payment of money in excess of $500,000 in the aggregate shall
be rendered against you or any of your subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or (g) Singapore Technologies Pte Ltd. fails
to own, either directly or indirectly, at least 50% of your issued and
outstanding common stock.
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then, and in any such event, we may, by notice to you, declare all amounts
payable under this Agreement to be forthwith due and payable, whereupon such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by you; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to you under the Federal Bankruptcy Code,
all amounts payable under this Agreement shall automatically become and be due
and payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by you.
13. This Agreement may be terminated by either you or us by giving written
notice of termination to the other party hereto, but no such termination shall
affect your obligations with respect to Advances outstanding at the time of such
termination. We may amend or modify the
terms and conditions of this Agreement at any time without prior notice to you
and without your consent, but no such amendment or modification shall affect
your obligations with respect to Advances outstanding at the time of such
amendment or modification.
14. No amendment or waiver of any provision of this Agreement or the Note,
nor consent to any departure by you therefrom, shall in any event be effective
unless the same shall be in writing and signed by you and us, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
15. All notices and other communications provided for hereunder shall be in
writing (including telecopier communication) and mailed, telecopied or
delivered, at address set forth below for you and for us; or, as to either
party, at such other address as shall be designated by such party in a written
notice to the other party. All such notices and communications shall, when
mailed or telecopied, be effective three Business Days after deposit in the
mails, or when telecopied, respectively, except that notices and communications
to us pursuant to paragraphs 2, 3 or 13 shall not be effective until received by
us.
If to you,
Radyne Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxx, CFO
Phone: 000-000-0000
Fax: 000-000-0000
If to us, for credit related matters
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Ms. Brigitte X.X. Xxxxx, VP
Phone: 000-000-0000
Fax: 000-000-0000
For notices on borrowings, payments, and other loan or operational matters
Citibank Delaware
Xxx Xxxx'x Xxx
Xxxxx 000
Xxx Xxxxxx, XX 00000
Attn: Mr. Sydney A. Chance, Jr.
Phone: 000-000-0000
Fax: 000-000-0000
16. No failure on our part to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
17. You agree to pay on demand all our reasonable out-of-pocket costs and
expenses (including without limitation, reasonable counsel fees and expenses) in
connection with the preparation, execution, delivery, administration,
modification, amendment and enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Note and the other documents to
be delivered hereunder, including without limitation, reasonable out-of-pocket
fees and expenses of our counsel in connection with the enforcement of rights
under this paragraph and otherwise in connection herewith. You agree to
indemnify and hold harmless us and each of our affiliates and our and their
officers, directors, employee, agents and advisors (each, an 'INDEMNIFIED
PARTY') from and against any and all claims, damages, losses, liabilities and
expenses (including without limitation, reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any indemnified Party, in
each case arising out of or in connection with this Agreement, the Note, any of
the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances, including without limitation, any of the foregoing
arising out of or in connection with any claim, litigation, investigation
proceeding, or preparation of a defense in connection therewith, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this paragraph applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by you or your directors,
shareholders or creditors or an Indemnified Party, or any Indemnified Party is
otherwise a party thereto, and whether or not the transactions contemplated
hereby are consummated.
18. If you make any payment of principal of any Advance on any day other
than the last day of the Interest Period applicable thereto (as a result of a
prepayment, acceleration, conversion of the interest rate for any Advance to the
Base Rate pursuant to paragraph 5, or otherwise), or if you fail to borrow or
prepay any Advance after you have given us notice thereof and, in the case of a
borrowing, we have agreed to make such Advance, you shall, upon demand by us,
pay us any amounts required to compensate us for any losses, costs or expenses
that we may reasonably incur as a result of such payment or failure to borrow or
prepay.
19. If on or prior to the first day of any Interest Period for any
Eurodollar Rate Advance, we advise you that (i) deposits in U.S. Dollars (in the
applicable amounts) are not being offered by us in the relevant market for such
Interest Period, or (ii) the Eurodollar Rate will not adequately and fairly
reflect our cost of funding such Eurodollar Rate Advance, then we shall promptly
give you notice thereof, and Eurodollar Rate Advances shall be suspended until
we notify you that the circumstances causing such suspension no longer exist.
20. We shall incur no liability to you in acting upon any request or other
communication we believe in the absence of gross negligence to have been given
by a Designated Officer or in otherwise acting in good faith under this
Agreement. Further, all documents required to be executed by you in connection
with Advances under this Agreement may be signed by any Designated Officer.
21. This Agreement and the Note shall be binding upon and inure to the
benefit of you, us and your and our respective successors and assigns, except
that you shall not have the right to assign your rights or obligations hereunder
or under the Notes or any interest herein or therein without our prior written
consent. Notwithstanding any other provisions set forth in this Agreement, we
may at any time create a security interest in all or any portion of our rights
under this Agreement and the Note in favor of any Federal Reserve Bank.
22. This Agreement and the Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
23. You hereby irrevocably (i) submit to the jurisdiction of any New York
State or Federal court sitting in New York City in any action or proceeding
arising out of or relating to this Agreement or the Note, (ii) agree that all
claims in respect of such action or proceeding may be heard and determined in
such New Your State court or in such Federal court, and (iii) waive, to the
fullest extent you may effectively do so, the defense of any inconvenient forum
to the maintenance of such action or proceeding. You agree that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdiction by suit on the judgment or in any other manner provided by
law. Nothing herein shall affect our right to serve legal process in any other
manner permitted by law or affect our right to bring any action or proceeding
against you or your property in the courts of other jurisdictions.
24. If an Event of Default shall have occurred and be continuing, we and
each of our affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by us or any of our affiliates to
or for your credit or account against any and all of your obligations now or
hereafter existing under this Agreement or the Note, irrespective of whether we
shall have made demand under this Agreement and although such obligations may be
unmatured. Our rights under this paragraph are in addition to other rights and
remedies (including without limitation, other rights of set-off) which we may
have.
25. Each of the parties hereto hereby irrevocable waives all right to trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Agreement, the Note, the
Advances or our actions in the negotiation, administration, performance or
enforcement hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CITIBANK, N.A.
By XXXXXXX X. XXXXXX
..................................
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-In-Fact
Agreed and Accepted
RADYNE CORPORATION
By XXXXXX X. FITTING
..................................
Name: Xxxxxx X. Fitting
Title: President
