Exhibit 10.1
AMENDMENT NO. 7 TO
LOAN AND SECURITY AGREEMENT
---------------------------
May 14, 2001
All American Semiconductor, Inc.
00000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated as
of May 3, 1996 among Xxxxxx Trust and Savings Bank, as a Lender and as
Administrative Agent for the Lenders, American National Bank and Trust Company
of Chicago, as a Lender and as Collateral Agent for the Lenders, the other
Lenders party thereto and All American Semiconductor, Inc., as amended to date
(the "Loan Agreement"). Unless defined herein, capitalized terms used herein
shall have the meanings provided for such terms in the Loan Agreement.
The Borrower has requested that the Lenders agree to amend the
Loan Agreement in certain respects. The Agents and the Lenders have agreed to
the foregoing on the terms and pursuant to the conditions provided herein.
Therefore, the parties hereto hereby agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended, as follows:
(a) A new defined term "OS Franchise Inventory Sublimit" is
hereby inserted into Section 1.1 of the Loan Agreement, in appropriate
alphabetical order, as follows:
"'OS Franchise Inventory Sublimit' shall mean an amount equal
to Sixteen Million Seven Hundred Fifty Thousand Dollars ($16,750,000),
reducing by One Million Three Hundred Thousand Dollars ($1,300,000) on
the last day of each calendar month commencing on May 31, 2001."
(b) A new defined term "ParView" is hereby inserted into
Section 1.1 of the Loan Agreement, in appropriate alphabetical order, as
follows:
"'ParView' shall mean, collectively, ParView, Inc. and each of
its affiliates."
(c) Clause (ii) of the definition of the term "Loan
Availability" contained in Section 2.1(a) of the Loan Agreement is hereby
amended by deleting therefrom the proviso thereto.
(d) The definition of the term "Loan Availability" contained
in Section 2.1(a) of the Loan Agreement is hereby amended and restated in its
entirety, as follows:
"(i) eighty-five percent (85%) of the face amount (less
maximum discounts, credits and allowances which may be taken by or
granted to Account Debtors in connection therewith) then outstanding
under existing Eligible Accounts at such time; PLUS
(ii) the lesser of (a) the sum of (x) fifty percent (50%) of
the value of Eligible Inventory consisting of Franchise Inventory other
than OS Franchise Inventory, (y) the lesser of (I) sixty-five percent
(65%), reducing to fifty percent (50%) on July 1, 2001, of the value of
Eligible Inventory consisting of OS Franchise Inventory and (II) the OS
Franchise Inventory Sublimit and (z) the lesser of (I) twenty percent
(20%) of the value of Eligible Inventory consisting of Non-Franchise
Inventory and (II) Three Million Fifty Thousand Dollars ($3,050,000),
and (b) the applicable Floating Inventory Cap; PLUS
(iii) during the period from May 14, 2001 through and
including June 14, 2001 only, Five Million Dollars ($5,000,000).
The amount of Revolving Loans outstanding from time to time
and predicated on clause (iii) above is hereafter referred to as the
"Overadvance Amount". For purposes of clause (ii) above, Inventory will
be valued at the lower of average cost or market value."
(e) A new clause (f) is hereby inserted into Section 2.7 of
the Loan Agreement, as follows:
"(f) The Borrower shall pay to the Administrative Agent, for
the account of the Lenders, weekly overadvance fees determined as set
forth herein. The overadvance fees shall be paid weekly in arrears on
each Monday hereafter, commencing on May 21, 2001 (each, a "Payment
Date"). Each installment of the overadvance fees shall be based on the
highest outstanding balance of the Overadvance Amount during the week
preceding each Payment Date and shall be equal to the amount set forth
below opposite such Overadvance Amount:
-----------------------------------------------------------------------
OVERADVANCE AMOUNT OVERADVANCE FEE
-----------------------------------------------------------------------
Less than or equal to $1,500,000 $10,000
-----------------------------------------------------------------------
Greater than $1,500,000 $50,000"
-----------------------------------------------------------------------
(f) The third paragraph of Section 3.1 of the Loan Agreement
is hereby amended by inserting the following immediately prior to the last
sentence thereof:
"The Weekly Reports shall also include, in a form and with
such specificity as is reasonably satisfactory to the Collateral Agent,
information on all Accounts of each Designated Company that do not
constitute Eligible Accounts, updated since the immediately preceding
Weekly Report and listing separately each ineligible category under
Section 3.2 hereof."
-2-
(g) A new fourth paragraph is hereby inserted into Section 3.1
of the Loan Agreement immediately prior to the existing fourth paragraph
thereof, as follows:
"In addition to the foregoing, on each Business Day, the
Borrower shall provide the Collateral Agent with a written report
describing, in a form and with such specificity as is reasonably
satisfactory to the Collateral Agent, information regarding the
Accounts owing to each Designated Company by ParView, updated since the
immediately preceding such report, and listing separately each
ineligible category under Section 3.2 hereof."
(h) Section 7.5 of the Loan Agreement is hereby amended by
inserting the following immediately prior to the last sentence thereof:
"In particular, and without limitation of the right of either
Agent or any Lender to require additional appraisals or environmental
update inspections pursuant to the immediately preceding sentence, on
or before May 21, 2001, the Borrower agrees to retain, at the
Borrower's expense, DoveBid Valuation Services, Inc., or another
appraiser acceptable to the Requisite Lenders, to complete an appraisal
of the Inventory of the Designated Companies as soon as reasonably
practicable, which appraisal shall be conducted using a methodology
acceptable to the Requisite Lenders. Notwithstanding anything herein to
the contrary, the Borrower shall be liable for all of the expenses of
each Lender incurred in connection with such Lender's participation in
the field audit to be conducted by the Collateral Agent in June, 2001."
(i) A new Section 7.18 is hereby inserted into the Loan
Agreement, as follows:
"7.18 PAR VIEW.
On or before May 31, 2001, the Borrower shall deliver to the
Collateral Agent, for review by the Collateral Agent and its counsel,
(a) copies of all leases or similar agreements in existence between
ParView and its customers and relating to products of any Designated
Company, together with copies of all UCC financing statements filed by
ParView against such customers, UCC searches conducted against such
customers and notice letters sent to any secured parties reflected in
such searches, and a comprehensive listing of such leases, reflecting
each customer's legal name, state of organization and principal place
of business and the location of the items subject to the applicable
lease, and (b) copies of all agreements pursuant to which such leases
have been collaterally assigned by ParView to the Borrower, together
with copies of all UCC financing statements filed by the Borrower
against ParView, UCC searches conducted against ParView and notice
letters sent to any secured parties reflected in such searches.
Thereafter, the Borrower shall deliver to the Collateral Agent such
additional information relating to such leasing arrangements as the
Collateral Agent shall reasonably request from time to time."
-3-
(j) A new Section 8.22 is hereby inserted into the Loan
Agreement, as follows:
"8.22 PAR VIEW ACCOUNTS.
The aggregate amount of outstanding Accounts of the Designated
Companies owing by ParView shall not at any time exceed Thirteen
Million Dollars ($13,000,000)."
(k) Section 11.9(c) of the Loan Agreement is hereby amended
and restated in its entirety, as follows:
"(c) Either Agent may, but shall have no duty (and is hereby
irrevocably authorized by the Lenders), to make such other
disbursements and advances on behalf of the Lenders (but in no event
may either Agent make any such disbursements or advances in excess of
the aggregate amount of Two Million Dollars ($2,000,000) without the
prior written consent of all Lenders), including without limitation the
making of Loans to the Borrower subsequent to the occurrence of a
Default, which such Agent, in its sole discretion, deems necessary or
desirable to preserve or protect the Collateral, or any portion
thereof, or to enhance the likelihood of, or maximize the amount of,
repayment by the Borrower of the Liabilities; provided that (i) such
excess advances shall not be outstanding for more than two periods of
thirty (30) consecutive days during any period of three hundred
sixty-five (365) consecutive days and (ii) no such excess advances may
be made for at least thirty (30) consecutive days after the termination
of each such thirty (30) day period and the repayment of all related
excess advances."
2. SCOPE. This Amendment No. 7 to Loan and Security Agreement
(this "Amendment") shall have the effect of amending the Loan Agreement and the
other Financing Agreements as appropriate to express the agreements contained
herein. In all other respects, the Loan Agreement and the other Financing
Agreements shall remain in full force and effect in accordance with their
respective terms.
3. CONDITIONS TO EFFECTIVENESS. Section 1(c) of this Amendment
shall be effective retroactive to January 1, 2001 and the balance of this
Amendment shall be effective prospectively from the date hereof, in each case
immediately upon the execution hereof by each Lender, the acceptance hereof by
Borrower and each Guarantor, and the delivery hereof to the Administrative
Agent, at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Mr.
Xxxxxxx Xxxx, Vice President, on or before May 14, 2001.
-4-
Very truly yours,
XXXXXX TRUST AND SAVINGS BANK,
as Administrative Agent and a Lender
Pro Rata Share: 20%
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Its: Vice President
----------------------------------------
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO,
as Collateral Agent and a Lender
Pro Rata Share: 20%
By: /s/ M. Xxxxxx Xxxxxx
-----------------------------------------
Its: First Vice President
----------------------------------------
FLEET BUSINESS CREDIT CORPORATION,
formerly known as SANWA BUSINESS
CREDIT CORPORATION, as a Lender
Pro Rata Share: 15%
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
Its: Vice President
----------------------------------------
FIRSTAR BANK N.A.,
formerly known as MERCANTILE BUSINESS
CREDIT, INC.,as a Lender
Pro Rata Share: 15%
By: /s/ Xxxxx X. Van Meter
-----------------------------------------
Its: Asst. Vice President
----------------------------------------
-5-
GMAC COMMERCIAL CREDIT LLC,
formerly known as THE BANK OF NEW
YORK COMMERCIAL CORPORATION, as a
Lender
Pro Rata Share: 15%
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Its: Vice President
----------------------------------------
BANK OF AMERICA, N.A.,
formerly known as NATIONSBANK, N.A.
successor by merger to
NATIONSBANK OF TEXAS, N.A.,
as a Lender
Pro Rata Share: 15%
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Its: Vice President
----------------------------------------
Acknowledged and agreed to as of
this 14th day of May, 2001.
ALL AMERICAN SEMICONDUCTOR, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Its: EVP & CFO
----------------------------
-6-
ACKNOWLEDGMENT AND ACCEPTANCE OF GUARANTORS
Each of the undersigned, in its capacity as a Guarantor of the
Liabilities of Borrowers to Agents and Lenders under the Loan Agreement, hereby
acknowledges receipt of the foregoing Waiver and Amendment No. 7 to Loan and
Security Agreement, accepts and agrees to be bound by the terms thereof,
ratifies and confirms all of its obligations under the Master Corporate Guaranty
executed by it and agrees that such Master Corporate Guaranty shall continue in
full force and effect as to it, notwithstanding such amendment.
Dated: May 14, 2001
Each of the Subsidiaries of All American
Semiconductor, Inc. listed on Exhibit A
attached hereto
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Its: EVP & CFO
--------------------------------------
-7-
EXHIBIT A
SUBSIDIARIES
NAME
----
Access Micro Products, Inc.
All American Added Value, Inc.
All American A.V.E.D., Inc.
All American Semiconductor-Northern California, Inc.
All American Semiconductor of Atlanta, Inc.
All American Semiconductor of Canada, Inc.
All American Semiconductor of Chicago, Inc.
All American Semiconductor of Florida, Inc.
All American Semiconductor of Huntsville, Inc.
All American Semiconductor of Massachusetts, Inc.
All American Semiconductor of Michigan, Inc.
All American Semiconductor of Minnesota, Inc.
All American Semiconductor of New York, Inc.
All American Semiconductor of Ohio, Inc.
All American Semiconductor of Philadelphia, Inc.
All American Semiconductor of Phoenix, Inc.
All American Semiconductor of Portland, Inc.
All American Semiconductor of Rockville, Inc.
All American Semiconductor of Salt Lake, Inc.
All American Semiconductor of Texas, Inc.
All American Semiconductor of Washington, Inc.
All American Semiconductor of Wisconsin, Inc.
All American Technologies, Inc.
All American Transistor of California, Inc.
Aved Industries, Inc.
Palm Electronics Manufacturing Corp.
