AMENDMENT #7 TO THIRD RESTATED AND
AMENDED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT #7 TO THIRD RESTATED AND AMENDED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of February 13, 2006, by and among GMAC
COMMERCIAL FINANCE LLC, as successor by merger to GMAC Commercial Credit LLC,
which was the successor in interest to BNY Financial Corporation ("GMAC CF"), as
Agent and Lender, PNC BANK, NATIONAL ASSOCIATION ("PNC", and together with GMAC
CF, "Lenders"), as Lender and Co-Agent, JACO ELECTRONICS, INC. ("Jaco"), NEXUS
CUSTOM ELECTRONICS, INC. ("Nexus") and INTERFACE ELECTRONICS, INC. ("Interface",
and together with Jaco and Nexus, "Borrowers").
W I T N E S S E T H :
WHEREAS, Borrowers, GMAC CF, PNC and Jaco de Mexico, Inc. entered into
that certain Third Restated and Amended Loan and Security Agreement, dated
December 22, 2003 (the "Third Restated Agreement"), as amended by (i) Amendment
#1 to the Third Restated Agreement, dated September 20, 2004, (ii) Amendment #2
to the Third Restated Agreement, dated November 23, 2004, (iii) Amendment #3 to
the Third Restated Agreement, dated February 11, 2005, (iv) Waiver and Amendment
#4 to the Third Restated Agreement, dated as of May 10, 2005, (v) Waiver and
Amendment # 5 to the Third Restated Agreement, dated September, 2005, and (vi)
Waiver #6 to the Third Restated Agreement, dated as of November 14, 2005 (as
heretofore amended and as hereafter restated, supplemented, extended, renewed,
amended and otherwise modified from time to time, the "Loan Agreement"), and
into various instruments, agreements and other documents executed and/or
delivered in connection therewith (all of the foregoing, together with the Loan
Agreement, as the same now exist or may hereafter be amended, restated, renewed,
extended, substituted, modified or supplemented from time to time, collectively,
the "Loan Documents"); and
WHEREAS, Borrowers have requested that Lenders agree to amend certain
terms of the Loan Agreement, and Lenders have agreed to accommodate Borrowers'
request subject to the terms and conditions set forth herein, all as more
particularly set forth below.
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Effective as of the date hereof, the definition of the term "Contract Rate"
set forth in Section 1.2 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"Contract Rate" shall mean, with respect to Revolving
Advances, an Interest Rate per annum equal to, as applicable:
(A) the Base Rate, plus (x) if the Fixed Charge
Coverage Ratio for the two consecutive full fiscal quarters
immediately preceding the date of calculation was equal to or
greater than 1.1 to 1.0, one (1.0%) percent, or (y) if the
Fixed Charge Coverage Ratio for either of the two consecutive
full fiscal quarters immediately preceding the date of
calculation was less than 1.1 to 1.0, one and one-half (1.50%)
percent ;or
(B) the Eurodollar Rate, plus (x) if the Fixed
Charge Coverage Ratio for the two consecutive full fiscal
quarters immediately preceding the date of calculation was
equal to or greater than 1.1 to 1.0, three and one-half
(3.50%) percent, or (ii) if the Fixed Charge Coverage Ratio
for either of the two consecutive full fiscal quarters
immediately preceding the date of calculation was less than
1.1 to 1.0, four (4.0%) percent."
(b) Effective as of the date hereof, the definition of the term "Inventory
Availability" set forth in Section 1.2 of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"Inventory Availability" shall mean the Revolving
Advances against Eligible Inventory which Lenders may from
time to time during the Term make available to Borrowers, in
an amount up to the least of (a) $17,000,000 (the "Inventory
Sublimit"), or (b) thirty-eight percent (38%) of the cost of
Jaco Eligible Inventory, other than LCD Inventory, calculated
on a first-in, first-out basis, or (c) eighty-five percent
(85%) of the net orderly liquidation value of Jaco Eligible
Inventory, calculated as of the date of calculation (the
lesser of the foregoing clause (b) and clause (c), the
"Inventory Advance Rate")."
(c) Effective as of the date hereof, Section 1.2 of the Loan Agreement is hereby
amended and restated in its entirety by the addition thereto, in the appropriate
alphabetical sequence, of the definition of the term "Temporary Availability
Advance", to read as follows:
"Temporary Availability Advance" has the meaning set
forth in Section 2.14(a)."
(d) Effective as of the date hereof, Section 1.2 of the Loan Agreement is hereby
amended and restated in its entirety by the addition thereto, in the appropriate
alphabetical sequence, of the definition of the term "Temporary Availability
Amount", to read as follows:
"Temporary Availability Amount" shall mean an amount
equal, in the sole and absolute discretion of Agent, to the
lesser of:
(A) (x) on February 13, 2006 and thereafter
through and including February 20, 2006, up to $1,500,000, (y)
on February 21, 2006 and thereafter through and including
March 20, 2006, up to $800,000, and (z) on March 21, 2006 and
at all times thereafter, $0, and
(B) (x) on February 13, 2006 and thereafter
through and including February 20, 2006, an amount equal to
seven percent (7%) of the cost of Eligible Inventory
(calculated on a first-in, first-out basis),(y) on February
21, 2006 and thereafter through and including March 20, 2006,
an amount equal to four percent (4%) of the cost (calculated
on a first-in, first-out basis) of Eligible Inventory, and (z)
on March 21, 2006 and at all times thereafter, $0."
2. Formula Amount. Effective as of the date hereof, Clause (y) of Section 2.1(a)
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"(y) an amount equal to the sum of:
(i) Receivables Availability, plus
(ii) Inventory Availability, plus,
(iii) in the sole and absolute discretion of Agent, the Temporary
Availability Amount, minus
(iv) the amount of any outstanding Letters of Credit, minus
(v) Reserves."
3. Advances.
(a) Effective as of the date hereof, Section 2.14(a) of the Loan Agreement is
hereby amended and restated to read in its entirety as follows:
"(a) Each borrowing of Revolving Advances shall be
advanced according to the applicable Commitment Percentages of
Lenders; provided, that any Revolving Advance, or portion
thereof, that would have caused the aggregate balance of
Revolving Advances to exceed the Formula Amount if Agent had
not, in the exercise of its discretion, made the Temporary
Availability Amount available ("Temporary Availability
Advances") shall be advanced solely by GMAC CF."
(b) Effective as of the date hereof, the first sentence of Section 2.14(b) of
the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"Subject to Section11.2 hereof, each payment
(including each prepayment) by Borrowers on account of the
principal of the Revolving Advances shall be applied first, to
outstanding Temporary Availability Advances, and then to the
other Revolving Advances pro rata according to the applicable
Commitment Percentages of Lenders."
4. Interest. Effective as of the date hereof, Section 3.1 of the Loan Agreement
is amended and restated to add the following sentence at the end thereof:
"Notwithstanding anything to the contrary set forth
herein, interest payable by Borrowers hereunder with respect
to any portion of the Revolving Advances constituting
Temporary Availability Advances shall be payable solely for
the account of GMAC CF."
5. Letter of Credit Fees. Effective as of the date hereof, the first sentence of
Section 3.2(a) of the Loan Agreement is hereby amended to read in its entirety
as follows:
"(a) Borrowers shall pay (x) to Agent, for the
benefit of Lenders, fees for each Letter of Credit for the
period from and excluding the date of issuance of same to and
including the date of expiration or termination, equal to the
average daily face amount of each outstanding Letter of Credit
multiplied, with respect to each monthly payment of fees, by
(i) if the Fixed Charge Coverage Ratio for the two consecutive
full fiscal quarters immediately preceding the date upon which
such payment is due was equal to or greater than 1.1 to 1.0,
three and one-half (3.50%) percent, or (ii) if the Fixed
Charge Coverage Ratio for either of the two consecutive full
fiscal quarters immediately preceding the date upon which such
payment is due was less than 1.1 to 1.0, four (4.0%) percent,
such fees to be calculated on the basis of a 360-day year for
the actual number of days elapsed and to be payable monthly in
arrears on the first day of each month and on the last day of
the Term, and (y) to Agent for the benefit of the Issuer, any
and all fees and expenses as agreed upon by the Issuer and the
Borrowers in connection with any Letter of Credit, including,
without limitation, in connection with the opening, amendment
or renewal of any such Letter of Credit and shall reimburse
Agent for any and all fees and expenses, if any, paid by Agent
to the Issuer (all of the foregoing fees, the "Letter of
Credit Fees")."
6. Inventory Appraisals. Effective as of the date hereof, Section 3.4(c) of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"(c) Inventory Appraisals. Borrowers shall pay all
costs and expenses relating to at least two inventory
appraisals per year undertaken by an appraiser designated by
Agent; provided, however, that after the occurrence of a
Default or Event of Default, additional inventory appraisals
may, at the request of the Lenders, be made by Agent at
Borrowers' expense. Any Lender may request semi-annually that
Agent perform, or cause to be performed, such inventory
appraisals."
7. Financial Covenants. Effective as of December 31, 2005, Section 6.9(b) of the
Loan Agreement is hereby amended to read in its entirety as follows:
"(b) Fixed Charge Coverage Ratio. Maintain, as of the
end of each period set forth below, a Fixed Charge Coverage
Ratio for the Loan Parties on a Consolidated Basis of not less
than the ratio set forth below opposite such period:
Period Ratio
six months ending 12/31/05` 0.4 to 1.0
three months ending 3/31/06 1.1 to 1.0
six months ending 6/30/06 1.2 to 1.0
nine months ending 9/30/06 1.2 to 1.0
as of the end of each quarterly period
thereafter, on a four-quarter rolling basis
for the previous four quarters 1.2 to 1.0
8. Application of Proceeds of Collateral. Effective as of the date hereof,
Section 11.2 of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"11.2 Application of Proceeds.
Upon the exercise by Agent of any remedies of enforcement
against the Collateral, the proceeds realized from any Collateral
shall be applied as follows: first, to the reasonable costs,
expenses and attorneys' fees and expenses incurred by Agent and
each of the Lenders for collection and for acquisition,
completion, protection, removal, storage, sale and delivery of
the Collateral; second, to interest due upon any of the
Obligations other than, if an Event of Default has occurred and
is continuing, outstanding Temporary Availability Advances;
third, to fees payable in connection with this Agreement; fourth,
to furnish to Agent cash collateral in an amount not less than
105% of the aggregate undrawn amount of all Letters of Credit,
such cash collateral arrangements to be in form and substance
satisfactory to Agent; fifth, to the principal of the Obligations
other than, if an Event of Default has occurred and is
continuing, outstanding Temporary Availability Advances; and
sixth, if an Event of Default has occurred and is continuing, to
the principal of outstanding Temporary Availability Advances and
accrued but unpaid interest thereon. If any deficiency shall
arise, Loan Parties shall remain liable to Agent and Lenders
therefor. If it is determined by an authority of competent
jurisdiction that a disposition by Agent of Collateral did not
occur in a commercially reasonable manner, Agent may obtain a
deficiency judgment for the difference between the amount of the
Obligations and the amount that a commercially reasonable sale of
the Collateral would have yielded. Agent will not be considered
to have offered to retain the Collateral in satisfaction of the
Obligations unless Agent has entered into a written agreement
with the Loan Parties to that effect."
9. Borrowers' Acknowledgements and Reaffirmations.
(a) Each Borrower hereby acknowledges, confirms and agrees that as of the date
of Borrowers' execution hereof, none of the Obligations are subject to offset,
defense or counterclaim of any kind, nature or description whatsoever.
(b) Each Borrower hereby ratifies and confirms the Loan Agreement and each of
the other Loan Documents as being legal, valid and binding joint and several
obligations of Borrowers, enforceable against Borrowers in accordance with their
respective terms as modified hereby. Each Borrower hereby confirms that there
are no defenses to the performance of any of such Borrower's obligations under
the Loan Agreement or any of the other Loan Documents. Each Borrower hereby
ratifies and confirms such Borrower's grant to Agent, for the ratable benefit of
Agent, Lenders and each Issuer, of first priority perfected liens upon, and
security interests in, the properties and assets of such Borrower heretofore
mortgaged, pledged, granted or assigned to Agent under the Loan Agreement and
the other Loan Documents, and acknowledges and confirms that such first priority
perfected liens and security interests secure, and shall continue to secure, the
Obligations, subject only to such prior security interests as are expressly
permitted under the Loan Documents.
(c) By its signature below, each Borrower ratifies and affirms to the Agent and
the Lenders that as of the date hereof, it is in full compliance with all
covenants under the Loan Documents, and certifies (i) that all representations
and warranties of Borrowers in the Loan Documents are true and accurate as of
the date hereof, with the same effect as if they had been made as of the date
hereof, (ii) no Default or Event of Default has occurred and is continuing, or
would result from the execution, delivery and performance by Borrowers of this
Amendment;
(iii) each Borrower has full power, right and legal authority to
execute, deliver and perform its obligations under this Amendment; (iv) each
Borrower has taken all action necessary to authorize the execution and delivery
of, and the performance of its obligations under, this Amendment; and (v) this
Amendment does not constitute a breach of any other agreement or understanding
to which such Borrower is a party or by which any property of such Borrower is
bound.
10. Ratifications. By their signatures below, each Borrower hereby ratifies the
Loan Agreement ( as hereby amended) and agrees (i) to be jointly and severally
liable for all Obligations under the Loan Agreement, and (ii) that all of the
outstanding amounts of the Loans under the Loan Agreement, as of the date
hereof, are the valid and binding Obligations of each of them, and (iii) to
repay to the Agent, for the benefit of the Lenders, such Obligations (including
but not limited to all applicable interest) in accordance with the terms of the
Loan Agreement, but in no event later than the Termination Date.
11. No Other Modifications. Except as specifically set forth herein, no other
changes or modifications to the Loan Agreement or the other Loan Documents are
intended or implied, and, in all other respects the Loan Agreement and the other
Loan Documents shall continue to remain in full force and effect in accordance
with their respective original terms except as heretofore amended in writing.
Nothing contained herein shall evidence a waiver by either Lender of any other
provision of the Loan Agreement or any of the other Loan Documents.
12. No Third Party Beneficiaries. The terms and provisions of this Amendment
shall be for the benefit of the parties hereto and their respective successors
and assigns; no other person, firm, entity or corporation shall have any right,
benefit or interest under this Amendment.
13. Condition to Effectiveness. The effectiveness of the terms and provisions of
this Amendment shall be subject to the receipt by Agent of an original of this
Amendment, duly authorized, executed and delivered by Borrowers.
14. Counterparts. This Amendment may be signed in counterparts, each of which
shall be an original and all of which, when taken together, shall constitute one
agreement. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart signed by the party to be
charged. Delivery of an executed counterpart of this Amendment by electronically
confirmed telefacsimile shall have the same force and effect as the delivery of
an original executed counterpart of this Amendment.
15. Merger. This Agreement sets forth the entire agreement and understanding of
the parties with respect to the matters set forth herein. This Amendment cannot
be changed, modified, amended or terminated except in a writing executed by the
party to be charged.
16. Amendment Fees. In consideration of the Lenders' agreement to the amendments
effected hereby, Borrowers agree to pay to the Agent, for the ratable benefit of
the Lenders, concurrently with their execution hereof, a non-refundable fee in
the amount of $100,000. In addition, in consideration of the Temporary
Availability Amount established hereby, Borrowers agree to pay to Agent, for the
benefit of GMAC CF, a non-refundable fee in the amount of $5,750. Borrowers
hereby authorize the Lenders to automatically charge to Borrowers' account the
respective amounts of such fees. It is understood and agreed by the parties that
the fees payable pursuant to this Paragraph 16 shall not be taken into account
for the purposes of calculating either the Fixed Charge Coverage Ratio or EBITDA
under the Loan Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment on the date hereinabove written.
GMAC COMMERCIAL FINANCE LLC,
as Agent and Lender
By: /s/Xxxxxx X Xxxxxx
----------------------
Title: 1st VP
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AGREED AND ACCEPTED:
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/Xxxx X. Xxxxx
----------------------
Title: Vice President
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JACO ELECTRONICS, INC., Borrower
By: /s/Xxxxxxx X. Xxxx
-------------------------
Title: CFO
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NEXUS CUSTOM ELECTRONICS, INC., Borrower
By: /s/Xxxxxxx X. Xxxx
-------------------------
Title: CFO
-----------------------
INTERFACE ELECTRONICS, INC., Borrower
By: /s/Xxxxxxx X. Xxxx
-------------------------
Title: CFO
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[Amendment #7 to Third Restated and Amended Loan and Security Agreement]
