EXHIBIT 10.1
FIFTH AMENDMENT AND WAIVER
TO XXXXXXXXX CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 29, 1997
This FIFTH AMENDMENT AND WAIVER (the "Amendment") is among
XXXXXXXXX CORPORATION, a Delaware corporation (the "Borrower"), the Financial
Institutions party to the Credit Agreement referred to below (the "Lenders"),
and NATIONSBANK OF TEXAS, N.A., as agent (the "Agent") for the Lenders
thereunder.
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders, CIBC Inc., as co-agent, and the
Agent have entered into an Amended and Restated Credit Agreement dated as of
April 10, 1996 (as amended to date, the "Credit Agreement"; capitalized terms
used and not otherwise defined herein have the meanings assigned to such terms
in the Credit Agreement).
2. The Borrower has requested that the Lenders, among other
things, waive, during the period starting on and including April 29, 1997 to
(but not including) May 30, 1997 (the "Waiver Period"), any Default arising as a
result of non-compliance with Section 6.04(a), (b), (c) or (d) of the Credit
Agreement.
3. The Lenders are, on the terms and conditions stated below,
willing to grant the request of the Borrower.
4. CIBC Inc. is no longer a party to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises 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. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the
------------------------------
date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 4 hereof, the Credit Agreement is hereby amended as follows:
(a) During the Waiver Period the definition of "Applicable
Margin" is amended and restated in its entirety as follows:
"APPLICABLE MARGIN" means 2.25% per annum until such
-----------------
time as the principal amount of Revolving Advances and Letter
of Credit Obligations shall be $80,500,000 or more, and 3.0%
per annum at all times on and after the date upon which
Revolving Advances and Letter of Credit Obligations shall be
$80,500,000 or more, notwithstanding any subsequent reduction
in the principal amount of Revolving Advances and Letter of
Credit Obligations to $80,500,000 or less.
(b) All references to "Co-Agent" in the Credit Agreement are
hereby deleted; henceforth, there shall be no Co-Agent under the Credit
Agreement.
(c) During the Waiver Period, the third sentence of Section
2.01(b) of the Credit Agreement is hereby amended and restated in its
entirety as follows:
1
"Each Revolving Borrowing shall be in an aggregate
amount of $500,000 or an integral multiple of $500,000 in
excess thereof unless such Revolving Borrowing is in the
amount of the aggregate Unused Revolving Commitment of each
Revolving Lender and shall consist of Revolving Advances made
by the Revolving Lenders ratably according to their respective
Revolving Commitments."
(d) Notwithstanding anything to the contrary in Section
2.02(b) of the Credit Agreement, the Notice of Borrowing with respect
to the first Revolving Borrowing during the Waiver Period may in
Agent's discretion be made on notice received by the Agent from the
Borrower (pursuant to a Notice of Borrowing) not later than 12:00 noon
(Dallas, Texas time) on the Business Day of such Borrowing.
(e) During the Waiver Period, the proviso of Section 2.05(a)
is hereby amended to read as follows:
"Provided, however, that each partial prepayment
shall be in the aggregate principal amount of $500,000 or any
multiple of $500,000 in excess thereof."
(f) Notwithstanding anything in Section 2.06 to the contrary,
on and after the Effective Date, the unpaid principal amount of all
Advances shall bear interest, payable monthly in arrears on the last
Business Day of each month, commencing April 30, 1997, and, with
respect to Revolving Advances, on the Revolving Commitment Termination
Date, and, with respect to Term Advances, on the Termination Date, in
each case at a fluctuating interest rate per annum equal, subject to
Section 2.06(d), to the sum of the Base Rate in effect from time to
time plus the Applicable Margin in effect during the Waiver Period as
provided in paragraph (a) above.
(g) During the Waiver Period, notwithstanding anything to the
contrary in the Credit Agreement, the aggregate outstanding amount of
Revolving Advances plus Letter of Credit Obligations shall not exceed
$82,000,000.
(h) During the Waiver Period, Section 3.05(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"SECTION 3.05. LETTER OF CREDIT COMPENSATION.
-----------------------------
(a) The Borrower shall pay to the Agent:
(i) for the account of the Issuing
Bank which Issues a Letter of Credit, an issuance fee
in an amount equal to 1/8 of 1% per annum of the
average daily Available Amount of such Letter of
Credit outstanding from time to time; and
(ii) for the account of each
Revolving Lender, a letter of credit fee with respect
to each Letter of Credit, in each case in an amount
equal to
(A) with respect to each
Financial Standby Letter of Credit, 4.00%
per annum of the amount of such Lender's
Revolving Pro Rata Share of the average
daily Available Amount of such Letter of
Credit outstanding from time to time;
2
(B) with respect to each
Performance Standby Letter of Credit, 3.50%
per annum of the amount of such Lender's
Revolving Pro Rata Share of the average
daily Available Amount of such Letter of
Credit outstanding from time to time; and
(C) with respect to each
Commercial Letter of Credit, 0.25% of the
amount of such Lender's Revolving Pro Rata
Share of the Available Amount of such Letter
of Credit as of the date of Issuance
thereof.
The letter of credit and issuance fees payable under
this Section 3.05(a) shall be payable monthly on the
last Business Day of each month, commencing April 30,
1997, and on the Revolving Commitment Termination
Date except that the letter of credit fee payable
under Section 3.05(a)(ii)(C) shall be payable upon
issuance of the applicable Letter of Credit. For
purposes of computing any fees under this Section
3.05(a), the determination of the maximum amount
available to be drawn under a Letter of Credit at any
time shall assume strict compliance with all
conditions for drawing. Any fees paid pursuant to
this Section 3.05(a) are nonrefundable."
(i) During the Waiver Period, the permissive exceptions to the
prohibitions of Section 6.02(g) contained in Sections 6.02(g)(v),
6.02(g)(vi), and 6.02(g)(viii) are suspended.
SECTION 2. WAIVER. (a) Subject to the terms and conditions
------
hereof, Lenders hereby waive, but only during the Waiver Period, the Specified
Defaults (hereinafter defined); provided, however, that Lenders' waiver of the
-------- -------
Specified Defaults and their rights and remedies as a result of the occurrence
thereof shall not constitute and shall not be deemed to constitute a waiver of
any other Event of Default, whether arising as a result of further violations of
any provision of the Credit Agreement previously violated by the Borrower, or a
waiver of any rights and remedies arising as a result of such other Events of
Default. As used herein, "Specified Defaults" shall mean the failure of the
------------------
Borrower to comply with Sections 6.04(a), (b), (c) and (d) of the Credit
Agreement. At the end of the Waiver Period, the waiver of the Specified Defaults
will automatically terminate.
(b) In consideration of Lenders' waiver of the Specified Defaults and
certain other good and valuable consideration, the Borrower hereby expressly
acknowledges and agrees that neither it nor any Guarantor or Grantor has any
setoffs, counterclaims, adjustments, recoupments, defenses, claims or actions of
any character, whether contingent, non-contingent, liquidated, unliquidated,
fixed, matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, known or unknown, against any Lender or Agent or any grounds or cause
for reduction, modification or subordination of the Obligations under the Loan
Documents or any liens or security interests of any Lender or the Agent. To the
extent the Borrower or any Guarantor or Grantor may possess any such setoffs,
counterclaims, adjustments, recoupments, claims, actions, grounds or causes, the
Borrower and each Guarantor and Grantor hereby waive, and hereby release each
Lender and Agent from, any and all such setoffs, counterclaims, adjustments,
recoupments, claims, actions, grounds and causes, such waiver and release being
with full knowledge and understanding of the circumstances and effects of such
waiver and release and after having consulted counsel with respect thereto.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall
---------------------------
not be effective until all proceedings of the Borrower taken in connection
herewith and the transactions contemplated hereby shall be satisfactory in form
and substance to Agent and Required Lenders, and each of the following
conditions precedent shall have been satisfied (the "Effective Date"):
3
(a) The Agent has executed this Amendment and has received
counterparts of this Amendment executed by the Borrower and the
Required Lenders and counterparts of the Consent appended hereto (the
"Consent") executed by each of the Guarantors and Grantors (as defined
in the Security Agreement) listed therein (such Guarantors and
Grantors, together with the Borrower, each a "Loan Party" and,
collectively, the "Loan Parties");
(b) All fees and expenses, including legal and other
professional fees and expenses incurred, payable on or prior to the
date of this Amendment to Agent, including, without limitation, the
fees and expenses of its counsel, shall have been paid to the extent
that same had been billed prior to the date of this Amendment; and
(c) Agent and each Lender shall have received each of the
following:
(1) a written estimate of consolidated and
consolidating weekly cash flow of the Borrower and its
Subsidiaries for the weeks beginning May 19 and May 26, 1997,
in the form previously delivered to the Lenders for the five
weeks ended May 18, 1997, satisfactory to Required Lenders;
(2) a certificate of the Borrower certifying (i) as
to the accuracy, after giving effect to this Amendment, of the
representations and warranties set forth in Article V of the
Credit Agreement, the other Loan Documents and in this
Amendment, and (ii) that there exists no Default or Event of
Default, after giving effect to this Amendment and the
execution, delivery and performance of this Amendment will not
cause a Default or Event of Default; and
(3) such other documents, instruments, and
certificates, as Agent or Required Lenders shall deem
necessary or appropriate in connection with this Amendment and
the transactions contemplated hereby, including without
limitation copies of resolutions of the board of directors of
the Borrower authorizing the transactions contemplated by this
Amendment.
SECTION 4. CONDITIONS SUBSEQUENT. As conditions subsequent to the
---------------------
effectiveness of this Amendment and Waiver, Borrower shall deliver to Agent and
each Lender, in form and substance reasonably satisfactory to Agent, on or
before May 23, 1997, (a) a report from the Borrower and its advisors on the
status of all asset dispositions, and (b) a budget for the business presently
conducted by Xyplex, Inc. and in the Xxxxxxxxx electronics systems group. Upon
Borrower's failure to make either such delivery, this Amendment will
automatically terminate and be of no further force and effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower
------------------------------
represents and warrants as follows:
(a) AUTHORITY. The Borrower and each other Loan Party has the
---------
requisite corporate power and authority to execute and deliver this
Amendment or the Consent, as applicable, and to perform its obligations
hereunder and under the Loan Documents (as modified hereby) to which it
is a party. The execution, delivery and performance by the Borrower of
this Amendment and by each other Loan Party of the Consent, and the
performance by each Loan Party of each Loan Document to which it is a
party have been duly approved by all necessary corporate action of such
Loan Party and no other corporate proceedings on the part of such Loan
Party are necessary to consummate such transactions.
4
(b) ENFORCEABILITY. This Amendment has been duly executed and
--------------
delivered by the Borrower. The Consent has been duly executed and
delivered by each Guarantor and Grantor. This Amendment and each Loan
Document (as modified hereby) is the legal, valid and binding
obligation of each Loan Party hereto or thereto, enforceable against
such Loan Party in accordance with its terms, and is in full force and
effect.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
------------------------------
warranties contained in each Loan Document (other than any such
representations or warranties that, by their terms, are specifically
made as of a date other than the date hereof) are correct on and as of
the date hereof as though made on and as of the date hereof.
(d) NO DEFAULT. After giving effect to this Amendment, no
----------
event has occurred and is continuing that constitutes a Default or
Event of Default.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a)
---------------------------------------------
Upon and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby.
(b) Except as specifically modified above, the Credit
Agreement and all other Loan Documents are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, the Collateral Documents and all of
the Collateral described therein do and shall continue to secure the payment of
all Secured Obligations under and as defined therein, in each case as amended
hereby.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as an
amendment of any right, power or remedy of any Lender or the Agent under any of
the Loan Documents, nor constitute an amendment of any provision of any of the
Loan Documents.
SECTION 7. FURTHER ASSURANCES. The Borrower shall execute and
------------------
deliver such further agreements, documents, instruments, and certificates in
form and substance satisfactory to Agent, as Agent or any Lender may deem
necessary or appropriate in connection with this Amendment.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of a signature
page to this Amendment or the Consent by telefacsimile shall be effective as
delivery of a manually executed counterpart of this Amendment or such Consent.
SECTION 9. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT
-------------------
PERMITTED BY LAW, EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY
IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
(WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR OTHERWISE) ARISING UNDER OR
RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY RELATED MATTERS,
AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
5
SECTION 10. GOVERNING LAW. This Amendment shall be governed
-------------
by, and construed in accordance with, the laws of the State of New York.
[Remainder of page left intentionally blank. Signature pages follow.]
6
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.
XXXXXXXXX CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Xxxx X. Xxxx
Treasurer
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX
Senior Vice President
Lenders:
--------
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX
Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxxxxx, Managing Director
CITY NATIONAL BANK, N.A.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxx X. Xxxx, Vice President
COMERICA BANK-CALIFORNIA
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx, Vice President
DK ACQUISITION PARTNERS, L.P.
By: X.X. XXXXXXXX & CO., its general partner
By: /s/ X. X. Xxxxxxx
-----------------------------------------
X. X. Xxxxxxx
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxx Xxxxx
-----------------------------------------
Xxxx Xxxxx
IMPERIAL BANK
By:
-----------------------------------------
Title:
XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX
By: /s/ Xxxxxx Khoslu
-----------------------------------------
Xxxxxx Khoslu, Managing Director
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxx, SVP
CONSENT
Each of the undersigned, as Guarantors under the "Guaranty" and as
grantors under the "Security Agreement" (as such terms are defined in the Credit
Agreement referred to in the foregoing Amendment), each hereby consents and
agrees to the foregoing Amendment and to be bound by the terms and provisions
thereof, and agrees that (i) the Guaranty and the Security Agreement are and
shall continue to be in full force and effect and are hereby ratified and
confirmed in all respects except that, upon the effectiveness of and on and
after the date of such Amendment each reference to the Credit Agreement,
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended by
such Amendment, and (ii) the collateral described in the Security Agreement
shall continue to secure the payment of the indebtedness therein described.
AVIANT INFORMATION, INC. (formerly BLUE XXXX
LEASE, INC.), a California corporation,
METROPOLITAN FINANCIAL SERVICES CORPORATION,
a Colorado corporation, PARK CHEMICAL
COMPANY, a Michigan corporation, XXXXXXXXX
COMMUNICATIONS, INC., a California
corporation, XXXXXXXXX CONTROLS, INC., a
California corporation, XXXXXXXXX CORP., a
Maine corporation, XXXXXXXXX ORDNANCE, INC.,
a Delaware corporation, WHITTAKER PORTA
BELLA DEVELOPMENT, INC., a California
corporation, XXXXXXXXX SERVICES CORPORATION,
a California corporation, XXXXXXXXX
TECHNICAL PRODUCTS, INC., a Colorado
corporation, XXXXXXXXX DEVELOPMENT CO., a
Delaware corporation, XXXXXXXXX XYPLEX,
INC., a Delaware corporation, and XYPLEX,
INC., a Massachusetts corporation
By: /s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx
Treasurer of each of the foregoing
Loan Parties
