WAIVER AND FOURTH AMENDMENT
Exhibit 10.63
WAIVER AND FOURTH AMENDMENT, dated as of December 6, 2006 (this “Amendment”), to the
Loan and Security Agreement, dated as of August 1, 2005 (the “Loan Agreement”), among Del Global
Technologies Corp. (“Del Global”), RFI Corporation and Del Medical Imaging Corp. (collectively,
the “Borrowers”) and North Fork Business Capital Corporation (the “Lender”). Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the
Loan Agreement.
WITNESSETH:
WHEREAS, the Borrowers and the Lender are parties to the Loan Agreement, under which the
Lender has agreed to make, and has made, Loans and other extensions of credit and accommodations
to the Borrowers on the terms and subject to the conditions set forth therein; and
WHEREAS, the Borrowers have requested that the Lender agree, and the Lender has agreed, (i)
to waive Events of Default that have occurred and are continuing and (ii) to amend certain
provisions of the Loan Agreement, each upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, the Borrowers and the Lender agree as follows:
SECTION 1 Waiver. Effective as of the date hereof, the Lender hereby waives
compliance with Section 8.6 of the Loan Agreement solely to the extent of the Borrowers’ failure
to comply with the covenant contained therein for the fiscal year ending July 29, 2006 and the
fiscal quarter ending October 28, 2006.
SECTION 2 Amendments to the Loan Agreement. Effective as of the date hereof, the Loan
Agreement is amended as follows:
(a) Section 8.6 of the Loan Agreement is hereby deleted and is amended and
restated in its entirety as follows:
Section 8.6 Tangible Net Worth. The Tangible Net Worth of Del Global and
its Subsidiaries as of the last day of each fiscal quarter commencing January 31, 2007
shall not be less than $4,250,000 plus 50% of the cumulative net income of Del
Global and its Subsidiaries for the quarter then ended.
SECTION 3 Conditions of Effectiveness. This Amendment shall become effective when,
and only when, the Lender shall have received (a) counterparts of this Amendment, duly executed
by the Borrowers, and (b) payment of the costs and expenses (including, without limitation,
reasonable attorneys’ fees) incurred by the Lender in connection with this Amendment.
SECTION 4 Representations and Warranties of the Borrowers. Each Borrower
represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York or Delaware, as the case may be, and is
qualified to do business under the laws of such other jurisdictions in which its failure to
so qualify could have a Material Adverse Effect.
(b) The execution, delivery and performance by such Borrower of this Amendment (i) are
within such Borrower’s corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (A) such Borrower’s Governing Documents, (B) any
Requirement of Law or (C) any Material Contract and (ii) will not result in or require the
creation or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with,
any Governmental Authority or other Person is required for the due execution, delivery and
performance by such Borrower of this Amendment.
(d) This Amendment and the Loan Agreement as amended hereby constitute the legal,
valid and binding obligations of such Borrower enforceable against such Borrower in
accordance with their respective terms except as enforceability may be limited by (i)
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii)
general principles of equity.
(e) Except as specified in Schedule 6.1(r) to the Loan Agreement and the litigation
between Del Global and Xxxxxxx Xxxxxxx, there is no pending or, to the best of such
Borrower’s knowledge after due inquiry, threatened litigation, contested claim,
investigation, arbitration or governmental proceeding by or against such Borrower before
any court, Governmental Authority or arbitrator which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect or which purports to affect
the legality, validity or enforceability of this Amendment or the Loan Agreement as amended
hereby.
(f) Except as specified in Section 1 hereof, no Default has occurred and is
continuing.
SECTION 5 Reference to and Effect on the Loan Agreement.
(a) On and after the date hereof, each reference in the Loan Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein” and words of like import, and each reference
in the other Loan Documents to the Loan Agreement shall mean and be a reference to the
Loan Agreement as amended hereby.
(b) Except as specifically waived or amended above, (i) the Loan Agreement and each
other Loan Document shall remain in full force and effect and
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are hereby ratified and confirmed by each of the parties hereto and (ii) the Lender shall
not be deemed to have waived any rights or remedies it may have under the Loan Agreement,
any other Loan Document or applicable law.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of or an amendment to any right, power or
remedy of the Lender under any of the Loan Documents, or constitute a waiver of or an
amendment to any provision of any of the Loan Documents.
SECTION 6 Costs and Expenses. The Borrowers agree to pay, on demand, all reasonable
out-of-pocket costs and expenses incurred by the Lender in connection with the preparation,
negotiation and execution of this Amendment (including, without limitation, the reasonable fees
and expenses of counsel to the Lender).
SECTION 7 Counterparts; Telecopied Signatures. This Amendment may be executed in
counterparts and by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all of which shall together constitute one and the same
instrument. This Amendment may be executed and delivered by telecopier or other facsimile
transmission with the same force and effect as if the same were a fully executed and delivered
original manual counterpart.
SECTION 8 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT,
WHETHER SOUNDING IN CONTRACT, TORT OR EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS
(AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF
THE STATE OF NEW YORK.
SIGNATURES CONTINUE ON FOLLOWING PAGE
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SIGNATURES CONTINUED FROM PREVIOUS PAGE
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.
| DEL GLOBAL TECHNOLOGIES CORP. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| RFI CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| DEL MEDICAL IMAGING CORP. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| NORTH FORK BUSINESS CAPITAL CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
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