EXHIBIT 10(n)
AMENDMENT NO. 1
TO LOAN AND SECURITY AGREEMENT
This Amendment dated as of April 27, 1995, is entered into by and between
Pico Macom, Inc., a Delaware corporation ("Debtor"), and Marine Midland
Business Loans, Inc., a Delaware corporation ("Secured Party"), with
reference to the following facts:
RECITALS
A. Secured Party is extending various secured financial accommodations to
Debtor upon the terms of that certain Loan and Security Agreement dated as of
May 25, 1994 (the "Loan Agreement").
B. Debtor and Secured Party desire to amend the Loan Agreement upon the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and for the other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged
by each party hereto, Debtor and Secured Party hereby agree as follows:
1. DEFINED TERMS. Unless otherwise specified herein, any capitalized
terms defined in the Loan Agreement shall have the same respective meanings as
used herein.
2. LEASES. With respect to Section 10.10 of the Loan Agreement and Item
30 of the Schedule thereto, the maximum aggregate lease rentals during any
fiscal year shall be increased from $500,000 to $750,000.
3. QUARTERLY STATEMENTS. With respect to Section 9.1(b) of the Loan
Agreement, the quarterly financial statements shall include a statement of cash
flow instead of a statement of retained earnings.
4. MONTHLY STATEMENTS. The requirements of Section 9.1(c) of the Loan
Agreement shall apply only to those months that are not the last month of a
fiscal quarter or fiscal year; where a month is the last month of a fiscal
quarter or fiscal year, the requirements of Sections 9.1(a) or (b) (as
applicable) shall instead apply.
5. QUARTERLY COMPLIANCE CERTIFICATE. The compliance certificate provided
in Section 9.1(d) of the Loan Agreement shall be furnished within forty-five
(45) days after the end of each fiscal quarter.
52
6. REPRESENTATIONS AND WARRANTIES. Debtor reaffirms that the
representations and warranties made to Secured Party in the Loan Agreement and
other Transaction Documents are true and correct in all material respects as of
the date of this Amendment as though made as of such date and after giving
effect to this Amendment. In addition, Debtor makes the following
representations and warranties to Secured Party, which shall survive the
execution of this Amendment:
(a) The execution, delivery and performance of this Amendment are
within Debtor's powers, have been duly authorized by all necessary actions, have
received all necessary governmental approvals, if any, and do not contravene any
law or any contractual restrictions binding on Debtor.
(b) This Amendment is the legal, valid and binding obligation of
Debtor, enforceable against Debtor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium and other
similar laws affecting the rights of creditors generally.
(c) No event has occurred and is continuing, or would result from the
execution, delivery and/or performance of this Amendment, which constitutes an
Event of Default under the Loan Agreement or any other of the Transaction
Documents, or would constitute such an Event of Default but for the requirement
that notice be given or time elapse or both.
7. CONTINUING EFFECT OF LOAN DOCUMENTS. To the extent of any
inconsistencies between the terms of this Amendment and the Loan Agreement, this
Amendment shall govern. In all order respects, the Loan Agreement and other
Transaction Documents shall remain in full force and effect and are hereby
ratified and confirmed.
8. REFERENCES. Upon the effectiveness of this Amendment, each reference
in any Transaction Document to "the Agreement", "hereunder," "herein," "hereof,"
or of like import referring to the Loan Agreement shall mean and be a reference
to the Loan Agreement as amended hereby.
9. GOVERNING LAWS. This Amendment, upon becoming effective, shall be
deemed to be a contract made under, governed by, and subject to, and shall be
construed in accordance with, the internal laws of the State of California.
53
10. CONDITIONS PRECEDENT. This Amendment shall become effective when, and
only when, Secured Party shall have received a counterpart of this Amendment
duly executed by Debtor and acknowledged by the guarantors indicated
hereinbelow, together with such other documents, instruments or agreements as
Secured Party or its legal counsel may reasonably request.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound here
by, have executed this Amendment as of the date first set forth above, to become
effective in the manner set forth above.
PICO MACOM, INC.
By /s/ XXXXXX X. XXXXXXXX
--------------------------------
Senior Vice President, CFO
MARINE MIDLAND BUSINESS LOANS, INC.
By /s/ XXXXXXX XXXXX
--------------------------------
Vice President
54
CONSENT OF GUARANTOR
The undersigned, as guarantor of the Indebtedness of Pico Macom, Inc. to
Marine Midland Business Loans, Inc. pursuant to that certain Unlimited
Continuing Guaranty dated as of May 25, 1994 (the "Guaranty"), hereby
acknowledges receipt of a copy of the foregoing Amendment No. 1 and
acknowledges, consents and agrees that (i) the Guaranty remains in full force
and effect, and (ii) the execution and delivery of the foregoing Amendment No. 1
and any and all documents executed in connection therewith shall not alter,
amend, reduce or modify its obligations and liabilities under the Guaranty.
Dated: April 27, 1995
PICO PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------
Senior Vice President, CFO
55
AMENDMENT NO. 2
TO LOAN AND SECURITY AGREEMENT
This Amendment dated as of May 18, 1995, is entered into by and between
Pico Macom, Inc., a Delaware corporation ("Debtor"), and Marine Midland Business
Loans, Inc., a Delaware corporation ("Secured Party"), with reference to the
following facts:
RECITALS
A. Secured Party is extending various secured financial accommodations to
Debtor upon the terms of that certain Loan and Security Agreement dated as of
May 25, 1994, as amended (the "Loan Agreement").
B. Debtor and Secured Party desire to amend the Loan Agreement upon the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and for the other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged
by each party hereto, Debtor and Secured Party hereby agree as follows:
1. DEFINED TERMS. Unless otherwise specified herein, any capitalized
terms defined in the Loan Agreement shall have the same respective meanings as
used herein.
2. ST. KITTS INVENTORY. With respect to Section 4.4 of the Loan
Agreement, and subject to eligibility requirements set forth in Section 1.1(j)
of the Loan Agreement, the Inventory of Debtor located at the premises of Pico
(St. Kitts) Ltd. at the Pond Industrial Site in St. Kitts shall be deemed
Eligible Inventory; provided, however, that the maximum amount of the Borrowing
Capacity calculated upon such Inventory pursuant to Item 1(B)(ii) of the
Schedule shall be limited to $750,000.
3. REPRESENTATIONS AND WARRANTIES. Debtor reaffirms that the
representations and warranties made to Secured Party in the Loan Agreement and
other Transaction Documents are true and correct in all material respects as of
the date of this Amendment as though made as of such date and after giving
effect to this Amendment. In addition, Debtor makes the following
representations and warranties to Secured Party, which shall survive the
execution of this Amendment:
56
(a) The execution, delivery and performance of this Amendment are
within Debtor's powers, have been duly authorized by all necessary actions, have
received all necessary governmental approvals, if any, and do not contravene any
law or any contractual restrictions binding on Debtor.
(b) This Amendment is the legal, valid and binding obligation of
Debtor, enforceable against Debtor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium and other
similar laws affecting the rights of creditors generally.
(c) No event has occurred and is continuing, or would result from the
execution, delivery and/or performance of this Amendment, which constitutes an
Event of Default under the Loan Agreement or any other of the Transaction
Documents, or would constitute such an Event of Default but for the requirement
that notice be given or time elapse or both.
4. CONTINUING EFFECT OF LOAN DOCUMENTS. To the extent of any
inconsistencies between the terms of this Amendment and the Loan Agreement, this
Amendment shall govern. In all other respects, the Loan Agreement and other
Transaction Documents shall remain in full force and effect and are hereby
ratified and confirmed.
5. REFERENCES. Upon the effectiveness of this Amendment, each reference
in any Transaction Document to "the Agreement", "hereunder," "herein," "hereof,"
or of like import referring to the Loan Agreement shall mean and be a reference
to the Loan Agreement as amended hereby.
6. GOVERNING LAWS. This Amendment, upon becoming effective, shall be
deemed to be a contract made under, governed by, and subject to, and shall be
construed in accordance with, the internal laws of the State of California.
7. CONDITIONS PRECEDENT. This Amendment shall become effective when, and
only when, Secured Party shall have received a counterpart of this Amendment
duly executed by Debtor and acknowledged by the guarantor indicated hereinbelow,
together with the following documents in form and substance satisfactory to
Secured Party:
(a) Letter agreement with Pico (St. Kitts) Ltd. pursuant to which it
waives certain rights with respect to the Inventory in its possession and agrees
to deliver such Inventory to Secured Party upon an Event of Default;
57
(b) Favorable letter of opinion from Xxxxxx and Xxxxxx with respect
to the enforceability, perfection and first-priority of Secured Party's security
interest in such Inventory; and
(c) Such other documents as Secured Party may reasonably request.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Amendment as of the date first set forth above, to
become effective in the manner set forth above.
PICO MACOM, INC.
By /s/ XXXXXX X. XXXXXXXX
--------------------------------
Senior Vice President, CFO
MARINE MIDLAND BUSINESS LOANS, INC.
By /s/ XXXXXXX XXXXX
--------------------------------
Vice President
58
CONSENT OF GUARANTOR
The undersigned, as guarantor of the Indebtedness of Pico Macom, Inc. to
Marine Midland Business Loans, Inc. pursuant to that certain Unlimited
Continuing Guaranty dated as of May 25, 1994 (the "Guaranty"), hereby
acknowledges receipt of a copy of the foregoing Amendment No. 2 and
acknowledges, consents and agrees that (i) the Guaranty remains in full force
and effect, and (ii) the execution and delivery of the foregoing Amendment No. 2
and any and all documents executed in connection therewith shall not alter,
amend, reduce or modify its obligations and liabilities under the Guaranty.
Dated: May 18, 1995
PICO PRODUCTS, INC.
By /s/ XXXXXX X. XXXXXXXX
--------------------------------
Senior Vice President, CFO
59
PICO (ST. KITTS) LTD.
X.X. Xxx 000, Xxxx Xxxxxx
Xxxxxxxxxx, Xx. Xxxxx, Xxxx Xxxxxx
(000) 000-0000, (000) 000-0000
FAX (000) 000-0000
TELEX #361-6890
May 18, 1995
MARINE MIDLAND BUSINESS LOANS, INC.
0000 XxxXxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Gentlemen:
From time to time we have in our possession certain inventory (the "Inventory")
of Pico Macom, Inc. a Delaware corporation (the "Debtor") which is in our
possession for the purpose of processing, performing work on, or adding
accessories or accessions to such Inventory at our place of business at the
Ponds Industrial Site in St. Kitts (the "Premises").
We understand that pursuant to a Loan and Security Agreement dated as of May 25,
1994, as amended by and between the Debtor and Marine Midland Business Loans,
Inc. (the "Lender") and related documents (collectively the "Transaction
Documents"), the Lender has agreed in accordance with the terms specified
therein, to extend credit to the Debtor based, in part, on the value of the
Inventory. We further understand that such extensions of credit are secured by,
among other things, a security interest granted by the Debtor to the Lender in
all of the Debtor's now owned or hereafter acquired Inventory, including without
limitation, the Inventory.
In consideration of our business relationship with the Debtor and in order to
induce the Lender to extend credit to the Debtor from time to time based, in
part, upon the value of the Inventory, we agree, intending to be legally bound
hereby, as follows (this "Agreement"):
1. We hereby acknowledge notice of the Lender's security interest in the
Inventory.
60
Marine Midland Business Loans, Inc.
May 18, 1995
Page 2
2. While the Inventory is in our possession, we will identify the
Inventory in a manner satisfactory to be Lender as property of the
Debtor.
3. We hereby acknowledge and agree that any lien claim or security
interest which we now have or may at any time hereafter acquire
(whether arising under applicable law by contract with the Debtor or
otherwise) in, to or against Inventory in our possession at the
Premises or in the possession of our agents shall be junior and
subordinate to the Lender's security interest in such Inventory,
notwithstanding priorities which might otherwise exist under
applicable law.
4. As long as this Agreement is in effect, we will not foreclose upon,
levy execution upon, attach or otherwise realize upon any security
interest in, lien upon, or claim to any of the Inventory.
5. We shall permit the Lender or its agents to enter upon the Premises
during normal business hours to inspect or remove any of the
Inventory. After the occurrence of an "Event of Default" as defined
in the Transaction Documents, and upon the oral or written direction
of the Lender, we shall refuse to release the Inventory to the Debtor
or any party other than the Lender or the party designated by the
Lender in such oral or written direction.
6. By its signature below, the Debtor agrees that we shall have no
liability to the Debtor whatsoever by reason of our surrender of
possession of Inventory to the Lender at the Lender's oral or written
direction.
7. We agree that this agreement shall bind us and our successors and
assigns, and shall inure to the benefit of and be enforceable by the
Lender and its successors and assigns.
61
Marine Midland Business Loans, Inc.
May 18, 1995
Page 3
8. This Agreement shall be a continuing agreement and shall remain in
full force and effect until all liabilities and obligations of the
Debtor to the Lender of every kind and description have been paid and
discharged in full and all Transaction Documents have been terminate.
This Agreement may not be amended or supplemented in any manner, other
than by a writing signed by us, the Lender, and the Debtor.
Very truly yours,
PICO (ST. KITTS) LTD.
By /s/ XXXXXXX X. XXXXXX
-----------------------------
General Manager
ACKNOWLEDGED AND AGREED TO
PICO MACOM, INC.
By /s/ XXXXXX X. XXXXXXXX
-----------------------------
Senior Vice President, CFO
ACCEPTED:
MARINE MIDLAND BUSINESS LOANS, INC.
By /s/ XXXXXXX XXXXX
-----------------------------
Vice President
62
