EXHIBIT 10.1
FOURTH AMENDMENT AND WAIVER
TO XXXXXXXXX CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 26, 1997
This FOURTH 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"), NATIONSBANK OF
TEXAS, N.A., as agent (the "Agent") for the Lenders thereunder and CIBC INC., as
co-agent ("Co-Agent") for the Lenders thereunder.
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders, the 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,
(i) waive, during the period starting on and including February 28, 1997 to (but
not including) April 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; and (ii) amend the Credit Agreement to extend the time for closing of
a sale-leaseback transaction that would not otherwise be permitted under the
terms of the Credit Agreement.
3. The Lenders are, on the terms and conditions stated below, willing
to grant the request of the Borrower.
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
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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 third sentence of Section 2.01(b) of
the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Each Revolving Borrowing shall be in an aggregate amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Revolving Advances made by the Revolving Lenders
ratably according to their respective Revolving Commitments."
(b) During the Waiver Period, the proviso of Section 2.05(a) is hereby
amended by deleting "$4,000,000" and substituting therefor "$1,000,000".
(c) During the Waiver Period, Section 2.06(a) is hereby amended by
deleting the words "payable quarterly in arrears on the 21st day of each
April, July, October and January, commencing April 21, 1996" and
substituting therefor the words "payable monthly in arrears on the last
Business Day of each month, commencing February 28, 1997".
(d) During the Waiver Period, the second sentence of Section 2.06(b)
of the Credit Agreement is hereby amended by deleting the words "one, two,
three, or six months" and substituting instead "one month".
Notwithstanding the foregoing, Borrower shall be permitted to maintain
until the end of their respective current Interest Periods any currently
outstanding Eurodollar Rate Advances with Interest Periods of two, three or
six months.
(e) During the Waiver Period, the parenthetical in the first sentence
of Section 2.06(c) of the Credit Agreement is hereby amended by deleting
"$4,000,000" and substituting "$1,000,000".
(f) During the Waiver Period, the second sentence of Section 2.06(c)
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"If the Borrower has made such election for Eurodollar Rate
Advances for any Interest Period, the Borrower shall pay interest on
the unpaid principal amount of such Eurodollar Rate Advance during
such Interest Period, payable in arrears on the last day of each
Interest Period (and, in addition, if such Interest Period is two,
three or six months, on the last Business Day of each month during
such Interest Period), at a rate equal, subject to Section 2.06(d), to
the sum of the Eurodollar Rate for such Interest Period for such
Eurodollar Rate Advances plus the Applicable Margin for Eurodollar
Rate Advances in effect from time to time during such Interest
Period".
(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 $79,000,000.
(h) During the Waiver Period, for purposes of calculating the
commitment fee pursuant to Section 2.07(b) of the Credit Agreement, each
Lender's Revolving Commitment shall be deemed to be reduced by such
Lender's pro rata share of $6,000,000.
(i) Section 6.02(e)(ix) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(ix) the sale by the Borrower of its three building office
complex located in Simi Valley, California in connection with a sale-
lease back of such property but only if such sale (A) is for fair
market value and is consummated on or prior to the end of the Waiver
Period, (B) is for cash and results in gross cash proceeds
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to the Borrower of not less than $13,000,000, and (C) the lease
obligations entered into in connection therewith do not require
payments by the Borrower or any of its Subsidiaries in excess of
$2,500,000 in any period of twelve consecutive months."
(j) 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.
(k) Section 9.02 of the Credit Agreement is hereby amended by
substituting the following address for the Agent:
"901 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Telecopier
No.: (000) 000-0000, Attention: Xxxxxxx X. Xxxxxxxxxxx, XX, Senior
Vice President"
SECTION 2. WAIVER. (a) Subject to the terms and conditions hereof,
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Lenders hereby waive, but only during the Waiver Period, the Specified Defaults
(hereinafter defined); provided, however, that Lenders' waiver of the Specified
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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
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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, Co-Agent 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, Co-Agent 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
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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"):
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(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) the Borrower has paid to the Agent in accordance with Section
2.09(a) of the Credit Agreement for the account of each Lender, a fee equal
to 0.15% of the sum of the principal amount of all outstanding Advances
owed to such Lender, the Unused Revolving Commitment, if any, of such
Lender and, in the case of each Revolving Lender, such Lender's Pro Rata
share of the aggregate outstanding Letter of Credit Obligations as of such
date;
(c) 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 some had been billed prior to the
date of this Amendment; and
(d) Agent and each Lender shall have received each of the following:
(1) 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
(2) 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. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
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warrants as follows:
(a) AUTHORITY. The Borrower and each other Loan Party has the
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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.
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(b) ENFORCEABILITY. This Amendment has been duly executed and
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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
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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
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occurred and is continuing that constitutes a Default or Event of Default.
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon
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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 6. FURTHER ASSURANCES. The Borrower shall execute and
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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 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed
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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 8. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY
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LAW, THE BORROWER HEREBY WAIVES ANY RIGHT THAT IT
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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.
SECTION 9. GOVERNING LAW. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.]
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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
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Xxxx X. Xxxx
Treasurer
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
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Xxxxxxx X. Xxxxxxxxxxx, XX
Senior Vice President
CIBC INC.,
as Co-Agent
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Vice President
Lenders:
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NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
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Xxxxxxx X. Xxxxxxxxxxx, XX
Senior Vice President
CIBC INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxx
Managing Director
CITY NATIONAL BANK, N.A.
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
Vice President
COMERICA BANK-CALIFORNIA
By:
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Title:
IMPERIAL BANK
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Senior Vice President
KREDIETBANK N.V.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Vice President
SANWA BANK CALIFORNIA
By: /s/ E. Xxxxx Xxxxx
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E. Xxxxx Xxxxx
Vice President - Section Manager
SUMITOMO BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Vice President
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 is and
shall continue to be in full force and effect and is 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, and XYPLEX, INC., a
Massachusetts corporation
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Treasurer of each of the foregoing Loan Parties
