Exhibit 4(a)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This First Amendment to Loan and Security Agreement (the "Amendment")
is made on April 11, 2003 by GMAC Commercial Finance, LLC, successor by merger
to GMAC Business Credit, LLC ("Lender"), Transcat, Inc. ("Parent"), Transmation
(Canada), Inc. ("Subsidiary", or together with Parent, the "Borrowers", or a
"Borrower").
RECITALS
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A. Borrowers and Lender entered into a Loan and Security Agreement
dated November 12, 2002 (as amended from time to time, the "Loan Agreement").
Capitalized terms used in this Amendment shall have the meanings set forth in
the Loan Agreement unless otherwise defined in this Agreement.
B. Borrowers are currently in default of Section 9.13 of the Loan
Agreement for failing to cause the wind-down of three of its subsidiaries (the
"Wind-Down Default").
C. Borrowers have requested that the Lender amend the Loan Agreement
and waive the Wind-Down Default.
D. Lender has agreed to waive the Wind-Down Default and amend the Loan
Agreement in accordance with Section 12.5 of the Loan Agreement as set forth
herein.
THEREFORE, in consideration of the mutual promises and agreements of the
parties hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree as follows:
TERMS AND CONDITIONS
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1. WAIVER. Pursuant to Section 12.5 of the Loan Agreement, Lender
hereby waives the Wind-Down Default. This waiver is only with respect to the
Wind-Down Default and should not be construed as a waiver of any other
conditions, covenants, or restrictions under the Loan Agreement.
2. AMENDMENTS. Pursuant to Section 12.5 of the Loan Agreement, Lender
amends Section 9.13 of the Loan Agreement to replace the reference to "March 15,
2003" with "June 30, 2003."
3. REAFFIRMATION. Borrowers reaffirm, ratify and confirm their
Obligations under the Loan Agreement, acknowledge that all terms and conditions
in the Loan Agreement (except as amended by this Amendment) remain in full force
and effect and that the security interests granted to Lender in the Collateral
are valid and perfected.
4. ENTIRE AGREEMENT. This Amendment constitutes the entire agreement of
the parties in connection with the subject matter of this Amendment and cannot
be changed or terminated orally. All prior agreements, understandings,
representations, warranties and negotiations regarding the subject matter
hereof, if any, and merged into this Amendment.
5. AUTHORIZATION. Borrowers and the signatories noted below represent
that all necessary corporate actions to authorize Borrowers to enter into this
Amendment have been taken, including, without limitation, board of directors
approval and resolutions necessary to authorize Borrowers' execution of this
Amendment.
6. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed
in counterparts, each of which when so executed and delivered shall be deemed an
original, and all of such counterparts together shall constitute but one and the
same agreement. Facsimile signatures will be treated as originals for all
purposes.
7. GOVERNING LAW. This Amendment shall be governed by, and construed
and enforced in accordance with, the laws of the State of Michigan.
8. WAIVER OF JURY TRIAL/CONSULTATION WITH COUNSEL. THE PARTIES HERETO
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT
THIS RIGHT MAY BE WAIVED. LENDER AND BORROWERS EACH HEREBY KNOWINGLY,
VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO A TRIAL BY JURY OR ALL
DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR ANY OTHER AGREEMENTS
BETWEEN THE PARTIES. NO PARTY SHALL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT
OF THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN
INSTRUMENT SIGNED BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL BE CHARGED.
BORROWERS ACKNOWLEDGE THAT (1) THEY HAVE CONSULTED WITH COUNSEL AND OTHER
ADVISORS OF THEIR CHOICE, AND AFTER CONSULTING WITH SUCH COUNSEL AND ADVISORS,
THEY ACKNOWLEDGE THAT SUCH COUNSEL HAS EXPLAINED THE LEGAL IMPLICATIONS OF
ENTERING INTO THIS AGREEMENT, AND KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS,
COERCION, UNLAWFUL RESTRAINT, INTIMIDATION OR COMPULSION, ENTER INTO THIS
AGREEMENT, BASED UPON SUCH ADVICE AND COUNSEL AND IN THE EXERCISE OF THEIR
BUSINESS JUDGMENT, (2) THEY HAVE CAREFULLY AND COMPLETELY READ ALL OF THE TERMS
AND PROVISIONS OF THIS AGREEMENT AND ARE NOT RELYING ON THE OPINIONS OR ADVICE
OF THE LENDER OR ITS AGENTS OR REPRESENTATIVES IN ENTERING INTO THIS AGREEMENT.
THIS AGREEMENT HAS BEEN ENTERED IN EXCHANGE FOR GOOD AND VALUABLE CONSIDERATION,
RECEIPT OF WHICH THE PARTIES HERETO ACKNOWLEDGE.
GMAC COMMERCIAL FINANCE TRANSCAT, INC.
LLC, successor by merger to GMAC
Business Credit, LLC
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: S.V.P. Title: Controller
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TRANSMATION (CANADA), INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Controller
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