Exhibit 10.1
THIRD AMENDMENT TO AMENDED AND RESTATED FINANCING
AGREEMENT AND GUARANTY
THIRD AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT AND GUARANTY
dated as of December 29, 1997 ("Third Amendment") among DEVLIEG XXXXXXX, INC.
(the Borrower"), THE CIT GROUP/BUSINESS CREDIT, INC. ("CITBC"), BNY FINANCIAL
CORPORATION ("BNYFC") (each of CITBC and BNYFC referred to as a "Lender" and
collectively, the "Lenders") and THE CIT GROUP/BUSINESS CREDIT, INC., as agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Lenders Agent").
PRELIMINARY STATEMENT. Reference is made to the Amended and Restated
Financing and Security Agreement dated as of January 17, 1997 among the
Borrower, CITBC, each other lender which may thereafter execute and deliver an
instrument of assignment under the Financing Agreement pursuant to Section 9(18)
(each a "Lender" and collectively, the "Lenders") and the Lenders Agent, as
amended by a First Amendment to Amended and Restated Financing and Security
Agreement dated as of April 1, 1997 and as further amended by a Second Amendment
to Amended and Restated Financing and Security Agreement dated as of September
17, 1997 (as it may be further amended, supplemented or modified from time to
time, the "Financing Agreement"). Any term used in this Third Amendment and not
otherwise defined in this Third Amendment shall have the meaning assigned such
term in the Financing Agreement.
Each of the parties hereto has agreed to amend the Financing Agreement as
hereinafter set forth.
SECTION 1. Amendments to Financing Agreement. The financing Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) The definition of "Availability" included in Section 1 "Definitions" is
amended in full to read as follows:
Availability shall mean at any time the excess, as determined by
Lenders Agent based upon the most recently delivered Weekly Availability
Report of (A) the sum of a) Eligible Accounts Receivable multiplied by the
percentage provided for in clause (b)(i) of the third sentence of Section
3(1)(a) of this Financing Agreement plus b) Eligible Unbilled Accounts
Receivable multiplied by the percentage provided for In clause (b)(ii) of
the third sentence of Section 3(1)((a) of this Financing Agreement but not
to exceed the limitation set forth therein, plus c) Eligible Inventory
multiplied by the percentage provided for in clause (b)(iii) of the third
sentence of Section 3(1)(a) of this Financing Agreement but not to exceed
the limitation set forth therein, over (B) the
Sum of y) the outstanding aggregate amount of all Revolving Loans of the
Borrower plus z) the maximum amount drawable under the Letters of Credit of
the Borrower and the maximum amount guaranteed under the guaranties of
CITBC issued pursuant to the Letter of Guaranty Agreement.
(b) Each of the following definitions will be added to Section 1
"Definitions" in proper alphabetical order:
Eligible Unbilled Accounts Receivable shall mean the then current
amount of the Borrower's Unbilled Accounts Receivable where in the case of
each Unbilled Accounts Receivable at least sixty-five percent (65%) of the
work required to complete the manufacture of the machine upon which such
Unbilled Accounts Receivable is based is completed, less any Unbilled
Accounts Receivable that either are not acceptable to the Required Lenders
in the exercise of their reasonable business judgment, less any Unbilled
Account Receivable that upon completion of the sale of the particular
machine creating the Unbilled Account Receivable such sale will not, for
any reason, result in the creation of an Eligible Account Receivable and
less any Unbilled Account Receivable where for any reason the Borrower will
be unable to complete the manufacture and delivery of the machine creating
such Unbilled Account Receivable in accordance with the terms of the
purchase order for such machine.
Unbilled Account Receivable means, once at least twenty-five percent
(25%) of the work required to complete the manufacture of a machine subject
to a specific purchase order for such machine has been completed, an amount
equal to the gross account receivable that will be generated upon
completion of such particular machine multiplied by a fraction the
numerator of which is a percentage (expressed as a decimal) equal to the
percentage of work that has been completed on such machine at the time of
determining such Unbilled Account Receivable and the denominator of which
is one, less any offsetting account or liability.
(c) The third sentence of Section 3(1)(a) of "Revolving Loans" is
amended in full to read as follows:
Such loans and advances shall be in amounts up to the lesser of (a)
$30,000,000 less the aggregate face amount of all outstanding Letters of
Credit Guaranties or (b) the sum of the following less the aggregate face
amount of all outstanding Letters of Credit Guaranties (i) eighty-five
percent (85%) of the outstanding Eligible Accounts Receivable of the
Borrower, plus (ii) forty percent (40%) of the Existing Eligible Unbilled
Accounts Receivable, provided, however, that the amount calculated pursuant
to this clause (ii) shall not exceed $3,000,000 at any time, plus (iii)
fifty percent (50%) of the aggregate value of Eligible Inventory of the
Borrower, provided, however, that the amount calculated pursuant to this
clause (iii) shall not exceed $20,000,000 at any time.
SECTION 2. Conditions of Effectiveness. This Third Amendment shall become
effective as of the date on which each of the following conditions have been
fulfilled:
(1) This Third Amendment. The Borrower, CITBC, BNYFC and Lenders Agent
shall each have executed and delivered this Third Amendment;
(2) Officer's Certificate. The following statement shall be true and
Lenders Agent shall have received a certificate signed by a duly authorized
officer of Borrower dated the date hereof stating that, after giving effect
to this Third Amendment and the transactions contemplated hereby;
(a) The representations and warranties contained in the Financing
Agreement and each of the other Loan Documents are correct on and as
to the Date hereof as though made on and as of such date; and
(b) No Default or Event of Default has occurred and is
continuing; and
(3) Additional Documentation. CITBC shall receive such other
approvals, opinions or documents as CITBC may reasonably request.
SECTION 3. Reference to and Effect on the Loan Documents. (a) Upon the
effectiveness of Section 1 hereof, on and after the date hereof each reference
in the Financing Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import, and each reference in the other Loan Documents to the
Financing Agreement, shall mean and be a reference to the Financing Agreement as
amended hereby.
(b)The execution, delivery and effectiveness of this Third Amendment shall
not operate as a waiver of any right, power or remedy of CITBC under any of the
Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents, and, except as specifically provided herein, the Financing Agreement
and each other Loan Document shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 4. Costs, Expenses and Taxes. The Borrower agrees to reimburse
CITBC on demand for all out-of-pocket costs, expenses and charges (including,
without limitation, all fees and charges of external legal counsel for CITBC)
incurred by CITBC in connection with the preparation, reproduction, execution
and delivery of the Third Amendment and any instruments and documents to be
delivered hereunder. In addition, the Borrower shall be obligated to pay any and
all stamp and other taxes and fees payable or determined to be payable in
connection with the execution and delivery, filing or recording of this Third
Amendment and the other instruments and documents to be delivered hereunder, and
agree to save CITBC harmless from and against any and all liabilities with
respect or resulting from any delay in paying or omission to pay such taxes or
fees.
SECTION 5. Governing Law. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Headings. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Third Amendment for any other purpose.
SECTION 7. Counterparts. This Third Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Third Amendment by signing any
such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment bo
be duly executed as of the day and year first above written.
XxXXXXX-XXXXXXX, INC.,
as Borrower
By /s/ X. X. Xxxxxx
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Name
Title
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By /s/ Xxxxxx Xxxxxxxxxx
---------------------------------
Name Xxxxxx Xxxxxxxxxx
Title Assistant Secretary
BNY FINANCIAL CORPORATION,
As Lender
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name Xxxxxxx X. Xxxxxxxx
Title Assistant Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lenders Agent
By
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Name
Title
