FIRST AMENDMENT
Exhibit 10.1
FIRST
AMENDMENT
FIRST AMENDMENT, dated as of
September 3, 2008 (this “Amendment”), to the Amended and Restated Loan and
Security Agreement, dated as of May 25, 2007 (the “Loan Agreement”), among Del
Global Technologies Corp. (“Del Global”), RFI Corporation and Del Medical
Imaging Corp. (collectively, the “Borrowers”) and Capital One Leveraged Finance
Corp., formerly known as North Fork Business Capital Corp. (the
“Lender”). Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Loan
Agreement.
W I T N E S S E T
H
:
WHEREAS, the Borrowers and the
Lender are parties to the Loan Agreement, under which the Lender has agreed to
make, and has made, Loans and other extensions of credit and accommodations to
the Borrowers on the terms and subject to the conditions set forth therein;
and
WHEREAS, the Borrowers have
requested that the Lender agree, and the Lender has agreed, to amend the Loan
Agreement to increase the amount of Letters of Credit available to be issued for
the account of the Borrowers, upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, the Borrowers
and the Lender agree as follows:
SECTION
1. Amendment
to the Loan Agreement. Effective as of the date hereof,
Section 2.10 of the Loan Agreement is amended by deleting “Two Million Dollars
($2,000,000)” and substituting Three Million Five Hundred Thousand Dollars
($3,500,000) therefor.
SECTION
2. Conditions
of Effectiveness. This Amendment
shall become effective when, and only when, the Lender shall have received
(a) counterparts of this Amendment, duly executed by the Borrowers, and (b)
payment of the costs and expenses (including, without limitation, reasonable
attorneys’ fees) incurred by the Lender in connection with this
Amendment.
SECTION
3. Representations
and Warranties of the Borrowers. Each Borrower
represents and warrants as follows:
(a) Such
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York or Delaware, as the case may be, and is
qualified to do business under the laws of such other jurisdictions in which its
failure to so qualify could have a Material Adverse Effect.
(b) The
execution, delivery and performance by such Borrower of this Amendment
(i) are within such Borrower’s corporate powers, have been duly authorized
by all necessary corporate action and do not contravene (A) such Borrower’s
Governing Documents, (B) any Requirement of Law or (C) any Material
Contract and (ii) will not result in or require the creation or imposition
of any Lien upon or with respect to any property now owned or hereafter acquired
by such Borrower.
(c) No
authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority or other Person is required for the due execution,
delivery and performance by such Borrower of this Amendment.
(d) This
Amendment and the Loan Agreement as amended hereby constitute the legal, valid
and binding obligations of such Borrower enforceable against such Borrower in
accordance with their respective terms except as enforceability may be limited
by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and (ii) general principles of equity.
(e) Except
as specified in Schedule 6.1(r) to the Loan Agreement, there is no pending or,
to the best of such Borrower’s knowledge after due inquiry, threatened
litigation, contested claim, investigation, arbitration or governmental
proceeding by or against such Borrower before any court, Governmental Authority
or arbitrator which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Amendment or the Loan Agreement as
amended hereby.
(f) No
Default has occurred and is continuing.
SECTION
4. Reference to and Effect on
the Loan Agreement.
(a) On
and after the date hereof, each reference in the Loan Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein” and words of like import, and each
reference in the other Loan Documents to the Loan Agreement shall mean and be a
reference to the Loan Agreement as amended hereby.
(b) Except
as specifically amended above, (i) the Loan Agreement and each other Loan
Document shall remain in full force and effect and are hereby ratified and
confirmed by each of the parties hereto and (ii) the Lender shall not be
deemed to have waived any rights or remedies it may have under the Loan
Agreement, any other Loan Document or applicable law.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of or an amendment to any right,
power or remedy of the Lender under any of the Loan Documents, or constitute a
waiver of or an amendment to any provision of any of the Loan
Documents.
SECTION
5. Costs and
Expenses. The Borrowers
agree to pay, on demand, all reasonable out-of-pocket costs and expenses
incurred by the Lender in connection with the preparation, negotiation and
execution of this Amendment (including, without limitation, the reasonable fees
and expenses of counsel to the Lender).
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SECTION
6. Counterparts;
Telecopied and other Electronic Signatures. This Amendment
may be executed in counterparts and by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same
instrument. This Amendment may be executed and delivered by
telecopier or other electronic transmission with the same force and effect as if
the same were a fully executed and delivered original manual
counterpart.
SECTION
7. GOVERNING
LAW. THE VALIDITY,
INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF
OR IN CONNECTION WITH THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT OR
EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE
CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW
YORK.
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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.
| DEL GLOBAL TECHNOLOGIES CORP. | |
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By:
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/s/
Xxxx X. Xxxxx
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Xxxx
X. Xxxxx
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Chief
Financial Officer
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RFI
CORPORATION
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By:
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Xxxx
X. Xxxxx
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Xxxx
X. Xxxxx
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Chief
Financial Officer
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DEL
MEDICAL IMAGING CORP.
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By:
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Xxxx
X. Xxxxx
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Xxxx
X. Xxxxx
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Chief
Financial Officer
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CAPITAL
ONE LEVERAGED FINANCE CORP.,
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formerly
known as North Fork Business Capital Corp.
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Vice
President
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