EXHIBIT 10.7
FIFTH AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT ("AMENDMENT"), dated effective as of March __, 2002 (the "AMENDMENT
EFFECTIVE DATE"), is executed and entered into by and among the financial
institutions listed on the signature pages hereof (such financial institutions
are referred to herein individually as a "LENDER" and collectively as the
"LENDERS"), Bank of America, National Association (in its capacity as agent for
the Lenders, the "AGENT"), and Pentacon, Inc. (the "PARENT") and each of the
other undersigned subsidiaries of the Parent party to the Agreement.
RECITALS:
A. The Borrowers, the Lenders, and the Agent are parties to the certain
Second Amended and Restated Loan and Security Agreement, dated as of September
30, 1999, as amended by the First Amendment to Second Amended and Restated Loan
and Security Agreement dated effective as of November 15, 1999, the Second
Amendment to Second Amended and Restated Loan and Security Agreement dated
effective as of December 31, 1999, the Third Amendment to Second Amended and
Restated Loan and Security Agreement dated effective as of September 30, 1999
and the Fourth Amendment to Second Amended and Restated Loan and Security
Agreement dated effective as of October 30, 2001 (collectively, the
"AGREEMENT").
B. The Loan Parties, the Lenders and the Agent have agreed to amend the
Agreement as provided below.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINITIONS. Unless otherwise defined in this Amendment, terms
defined by the Agreement, where used in this Amendment, shall have the same
meanings in this Amendment as are prescribed by the Agreement.
ARTICLE 2
AMENDMENTS
Section2.1 AMENDMENT TO DEFINITIONS IN SECTION 1.1 OF THE AGREEMENT.
Effective as of the Amendment Effective Date, the definitions of "Commitment
Termination Date," "Maximum Revolver Amount" and "Stated Termination Date" in
SECTION 1.1 of the Agreement are hereby amended and restated to read in its
entirety as follows:
"MAXIMUM REVOLVER AMOUNT" means $65,000,000.
"COMMITMENT TERMINATION DATE" means April 26, 2002.
"STATED TERMINATION DATE" means April 30, 2002.
Section 2.2 AMENDMENT IN RESPECT OF DEFINITION OF "COMMITMENT".
Effective as of the Amendment Effective Date, the "Commitment" of each Lender
hereby is amended to be the amount specified under the heading "Commitment"
adjacent to its signature page to this Amendment.
Section 2.3 AMENDMENT TO SECTION 9.26. Effective as of the Amendment
Effective Date, SECTION 9.26 of the Agreement hereby is amended to (i) delete
the word "or" after CLAUSE (c) thereof and (ii) add the following prior to the
period that follows CLAUSE (d) thereof:
or (e) make any payment or prepayment of Debt evidenced by the
Subordinated Notes.
ARTICLE 3
ADDITIONAL AGREEMENTS
Section 3.1 WEEKLY CASH FLOW PROJECTIONS. Pursuant to, and without
limiting, SECTION 7.2(l) of the Agreement, the Loan Parties shall deliver to the
Agent, on or before Wednesday of each calendar week (or if such day is not a
Business Day, on the next Business Day) beginning on or after the Amendment
Effective Date and continuing thereafter, a current forecasted statement of cash
flow for the Parent and its consolidated Subsidiaries for the thirteen (13)
calendar week period beginning on the first day of such calendar week.
Section 3.2 RELEASE. In consideration of this Amendment, each of the Loan
Parties on its own behalf and on behalf of their respective Subsidiaries,
predecessors, successors and assigns (collectively, the "RELEASING PARTIES"),
hereby irrevocably and forever releases, remises, discharges and holds harmless
the Agent and each Lender and all of their respective officers, directors,
employees, agents, attorneys and representatives, and all of their respective
predecessors, successors, and assigns, from any and all claims, causes of
action, demands, and liabilities of any kind whatsoever, if any, whether direct
or indirect, fixed or contingent, liquidated or nonliquidated, disputed or
undisputed, asserted or non-asserted, known or unknown, which any of the
Releasing Parties has relating in any way to any event, circumstance,
occurrence, act, action, or failure to act in connection with or otherwise
concerning this Agreement, the other Loan Documents or the transactions
contemplated therein from the beginning of time through the Amendment Effective
Date.
ARTICLE 4
MISCELLANEOUS
Section 4.1 CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) The Agent shall have received all of the following, each dated
the date of this Amendment (unless otherwise indicated), in form and
substance satisfactory to the Agent:
(i) AMENDMENT DOCUMENTS. This Amendment and any other agreement,
certificate, document, or instrument required by the Agent to be
executed or delivered by any Borrower, the Agent, or the Lenders in
connection with this Amendment, in each case duly executed (the
"AMENDMENT DOCUMENTS");
(ii) FEES AND EXPENSES. Evidence that the costs and
expenses (including, without limitation, reasonable attorneys' fees
and expenses) incurred by the Agent incident to this Amendment or
otherwise required to be paid in accordance with SECTION 15.7 of the
Agreement, to the extent incurred and submitted to the Borrowers,
shall have been paid in full;
(iii) ADDITIONAL INFORMATION. The Agent shall have received such
additional documents, instruments, and information as the Agent may
reasonably request to effect the transactions contemplated hereby; and
(iv) CONSENTS. All consents required by SECTION 13.2 of the
Agreement shall have been obtained.
(b) The representations and warranties contained herein, in the
Agreement, and in all other Loan Documents, as amended hereby, shall be
true and correct as of the date hereof as if made on the date hereof
(except those, if any, which by their terms specifically relate only to a
different date).
(c) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements,
documents, and instruments executed and/or delivered pursuant hereto, and
all legal matters incident thereto, shall be satisfactory to the Agent.
(d) No Default or Event of Default shall have occurred and be
continuing.
Section 4.2 REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent
and warrant to, and agree with, the Agent, for the benefit of the Lenders, that,
as of the date of and after giving effect to this Amendment, (a) the execution,
delivery, and performance of this Amendment and any and all other Amendment
Documents executed and/or delivered in connection herewith have been authorized
by all requisite corporate action on the part of each of the Borrowers (as
applicable) and will not violate any of such Borrower's certificate of
incorporation or bylaws, (b) all representations
and warranties set forth in the Agreement and in any other Loan Document are
true and correct as if made again on and as of such date (except those, if any,
which by their terms specifically relate only to a different date) in the
Agreement), (d) no Default or Event of Default has occurred and is continuing,
(e) the Agreement (as amended by this Amendment), and all other Loan Documents
are and remain legal, valid, binding, and enforceable obligations in accordance
with the terms thereof, and (f) the certifications delivered to the Agent under
CLAUSE (i), CLAUSE (ii), CLAUSE (iii), and CLAUSE (iv) of SECTION 10.1(a) of the
Agreement remain true, correct, and complete as of the Amendment Effective Date.
Section 4.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment or any other Loan Document shall survive
the execution and delivery of this Amendment and the other Loan Documents, and
no investigation by the Agent or any Lender, or any closing, shall affect the
representations and warranties or the right of the Agent and the Lenders to rely
upon them.
Section 4.4 REFERENCE TO AGREEMENT. Each of the Loan Documents, including
the Agreement, the Amendment Documents, and any and all other agreements,
documents, or instruments now or hereafter executed and/or delivered pursuant to
the terms hereof or pursuant to the terms of the Agreement as amended hereby,
are hereby amended so that any reference in such Loan Documents to the
Agreement, whether direct or indirect, shall mean a reference to the Agreement
as amended hereby.
Section 4.5 SEVERABILITY. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 4.6 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of the Agent, the Lenders, the Borrowers, and their
respective successors and assigns, except no Borrower may assign or transfer any
of its rights or obligations hereunder without the prior written consent of the
Agent and the Lenders.
Section 4.7 GENERAL. This Amendment, when signed by each signatory as
required by the Agreement (a) shall be deemed effective prospectively as of the
Amendment Effective Date, (b) contains the entire agreement among the parties
and may not be amended or modified except in writing signed by all parties as
required by the Agreement, (c) shall be governed and construed according to the
laws of the State of Texas, and (d) may be executed in any number of
counterparts, each of which shall be valid as an original and all of which shall
be one and the same agreement. A telecopy or other electronic transmission of
any executed counterpart shall be deemed valid as an original.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers in several counterparts effective
as of the date specified in the introductory paragraph hereof.
LOAN PARTIES:
------------
PENTACON, INC.
By: /s/ XXX X. XXXXXXXX
---------------------------------------
Name: Sr Vice President & General Counsel
--------------------------------------
Title: Xxx X. XxXxxxxx
-------------------------------------
PENTACON AEROSPACE GROUP, INC., a Nevada
corporation and successor by merger to
Texas International Aviation, Inc., West
Coast Aero Products Holding Corp., Xxxxxxx
Acquisition Corp., ASI Aerospace Group,
Inc. and Alatec Products, Inc.
ALATEC CABLE HARNESS &
ASSEMBLY DIVISION, INC.
ALATEC FASTENER AND COMPONENT GROUP, INC.
ALATEC RACE, INC.
TRACE ALATEC SUPPLY COMPANY, INC.
By: /s/ XXX X. XXXXXXXX
---------------------------------------
Name: Xxx X. XxXxxxxx
--------------------------------------
Title: Sr. Vice President & General Counsel
-------------------------------------
PENTACON INDUSTRIAL GROUP, INC, a Nevada
corporation and successor by merger to AXS
Solutions, Inc., Maumee Industries, Inc.
and Sales Systems Limited
By: /s/ XXX X. XXXXXXXX
----------------------------------------
Name: Xxx X. XxXxxxxx
--------------------------------------
Title: Sr Vice President & General Counsel
-------------------------------------
PENTACON USA, L.P., a Texas limited
partnership and successor by merger to
Pace Products, Inc. and Capitol Bolt &
Supply, Inc.
By: JIT Holdings, Inc., a Texas
corporation
Its: General Partner
By: /s/ XXX X. XXXXXXXX
--------------------------------
Name: Xxx X. XxXxxxxx
------------------------------
Title: President
-----------------------------
THE AGENT:
----------
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ XXXXXXX XXXXX
----------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------------
Title: Sr V.P.
-------------------------------------
THE LENDERS
-----------
Commitment: $26,000,000 BANK OF AMERICA, NATIONAL ASSOCIATION
Pro Rata Share: 40.0%
By: /s/ XXXXXXX XXXXX
----------------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------------
Title: Sr V.P.
-------------------------------------
Commitment: $13,000,000 FLEET CAPITAL CORPORATION
Pro Rata Share: 20.0%
By: /s/ H XXXXXXX XXXXX
----------------------------------------
Name: H. Xxxxxxx Xxxxx
---------------------------------------
Title: Senior Vice President
-------------------------------------
Commitment: $13,000,000 PNC BANK, NATIONAL ASSOCIATION
Pro Rata Share: 20.0%
By: /s/ XXXXXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
Commitment: $13,000,000 UNION BANK OF CALIFORNIA, N.A.
Pro Rata Share: 20.0%
By: /s/ XXXX X. XXXXX
---------------------------------------
Name: Xxxx X. Xxxxx
--------------------------------------
Title: Vice President
-------------------------------------
