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EXHIBIT 10.1
SECOND AMENDMENT TO FIFTH
AMENDED AND RESTATED LOAN AGREEMENT
This Second Amendment (the "Amendment") dated as of August 10, 1998, is
between Bank of America National Trust and Savings Association (the "Bank") and
Xxxxxxxx Incorporated, a Delaware corporation (the "Borrower").
RECITALS
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A. The Bank and the Borrower entered into a certain Fifth Amended and
Restated Loan Agreement dated as of June 23, 1997, as previously amended (the
"Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
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1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1 of the Agreement is hereby amended as follows:
(a) The following defined terms are deleted in their
entirety: "Letter of Credit," "Letter of Credit Obligations," and
"Outstanding Letters of Credit."
(b) In the definition of "Consideration", the figure
"$10,000,000" is substituted for the figure "$5,000,000".
(c) The definition of "Line of Credit" is amended to read as
follows:
"`Line of Credit' means the credit facility for Loans
described in Article 2 of this Agreement."
(d) In the definition of "Loan Documents," the phrase "the
Letters of Credit," is hereby deleted.
(e) The definition of "Maximum Amount" is amended to read
as follows:
"`Maximum Amount' means, as of any date of determination
thereof, the Line Commitment."
(f) The definition of "Permitted Acquisition" is amended
as follows:
(i) The first line of the definition is amended to read:
"`Permitted Acquisition' means, subject to Paragraph
6.3(c) hereof, any Acquisition by Borrower:..."
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(ii) Subparagraph (vi) is amended to read as follows:
"(vi) of a Target which, if the Total Purchase Price
for the Acquisition is greater than $15,000,000,
obtains at least 75% of its revenue from one or more
lines of business that are the same as or very
similar to one or more lines of business in which
Borrower or one of its Subsidiaries is engaged. If
the Total Purchase Price for the Acquisition of such
Target is less than or equal to $15,000,000, such
percentage is reduced to 50%."
(iii) In subparagraph (vii), the figure of "$35,000,000"
is substituted for the figure of "$25,000,000."
(iv) In subparagraph (viii), the first three lines are
amended to read:
"(viii) with respect to which, if the Total Purchase
Price for such Acquisition is not less than
$15,000,000:..."
(v) In clause (B) of subparagraph (viii), the phrase
"Total Purchase Price" is substituted for the word
"Consideration."
(g) In the definition of "Term of this Agreement," the
phrase "no Letter of Credit remains outstanding," is deleted.
(h) The definition of "Termination Date" is amended to read:
"`Termination Date' means July 1, 2001."
(i) In the definition of "Total Consideration," clause (a)
is amended to read:
"...(a) the aggregate amount of the Consideration for
all Acquisitions (excluding American Electronics, Inc.)
that have occurred during the Term of this
Agreement,..."
(j) In the definition of "Total Funded Debt" the phrase
"Outstanding Letters of Credit" is deleted.
(k) The definition of "Total Outstandings" is amended to
read:
"'Total Outstandings' means, as of any date of
determination, all outstanding Loans."
(l) The definition of "Total Purchase Price" is added to
read as follows:
"`Total Purchase Price' means Total Consideration
without excluding the then current value of Borrower's
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capital stock up to $10,000,000 that constitutes all or
any part of the Consideration for such Acquisition."
2.2 Paragraph 2.2 of the Agreement is deleted in its entirety
and the following is substituted therefore:
"2.2 Intentionally Omitted."
2.3 In Paragraph 4.13 of the Agreement, the phrase "or in
connection with the issuance of any Letter of Credit, " is deleted.
2.4 The Agreement is hereby amended to add a new Paragraph 4.18
to read as follows:
"4.18 Year 2000 Compliance. The Borrower has developed and
budgeted for a comprehensive program to address the "Year 2000
Problem" (that is the inability of computers, as well as
embedded microchips in non-computing devices, to properly
perform date-sensitive functions with respect to certain dates
prior to and after December 31, 1999). The Borrower has
implemented that program substantially in accordance with its
timetable and budget and reasonably anticipates that it will
have substantially addressed the year 2000 problem as to all
computers, as well as embedded microchips in non-computing
devices, that are material to the Borrower's business properties
or operations. The Borrower has developed comprehensive
contingency plans to achieve uninterrupted and unimpaired
business operation in the event of failure of its own equipment
due to a year 2000 problem, as well as general failure of/or
interruption in its communications or delivery infrastructure,
however, the Borrower cannot provide assurance that the systems
of other companies on which the Borrower's systems rely also
will be timely converted or that such failure to convert by
another company would not have an adverse affect on the
Borrower's system."
2.5 Paragraph 5.9 of the Agreement is amended in its entirety to
read as follows:
"5.9 Use of Proceeds. Use the proceeds of the Line of Credit
for the following purposes only: (i) working capital purposes of
Borrower and its Subsidiaries, (ii) other lawful corporate
purposes in the ordinary course of business, and (iii) to
finance Permitted Acquisitions."
2.6 Paragraph 6.3 of the Agreement is amended by deleting the
period at the end of said paragraph and adding the following:
"and (c) the Borrower may redeem or repurchase shares of its
common stock, in addition to the amount permitted in clause
(b) herein, in an aggregate amount not exceeding
$15,000,000; provided that all amounts paid by the Borrower
to redeem or repurchase stock under this Paragraph 6.3(c),
shall reduce by like amount, the amount of Permitted
Acquisitions allowed under this Agreement."
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2.7 A new clause (p) is added to Paragraph 6.6 of the Agreement
to read as follows:
"(p) Indebtedness incurred in connection with the
Acquisition of American Electronics, Inc."
2.8 In Paragraph 6.11 of the Agreement, the table appearing
therein is amended to read as follows:
"Period Maximum Ratio
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Second Fiscal Quarter, 1.25:1:00
1997, through Fourth Fiscal
Quarter, 1999
First Fiscal Quarter, 2000 1.30:1.0
and each Fiscal Quarter
thereafter"
2.9 In Paragraph 9.2 of the Agreement, all references to Letters
of Credit are hereby deleted.
2.10 In Paragraph 10.8 of the Agreement, all references to
Letters of Credit are hereby deleted.
3. Representations and Warranties. When the Borrower signs this
Amendment, the Borrower represents and warrants to the Bank that: (a) there is
no event which is, or with notice or lapse of time or both would be, a default
under the Agreement, (b) the representations and warranties in the Agreement are
true as of the date of this Amendment as if made on the date of this Amendment,
(c) this Amendment is within the Borrower's powers, has been duly authorized,
and does not conflict with any of the Borrower's organizational papers, and (d)
this Amendment does not conflict with any law, agreement, or obligation by which
the Borrower is bound.
4. Conditions. This Amendment will be effective when the Bank receives
the following items, in form and content acceptable to the Bank:
4.1 An amendment fee in the amount of $10,000.
4.2 An Instrument of Joinder, duly executed by American
Electronics, Inc., together with a corporate resolution authorizing such
guaranty by joinder, certified by its Secretary or Assistant Secretary.
5. Effect of Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and effect.
(signatures to follow)
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This Amendment is executed as of the date stated at the beginning of
this Amendment.
Bank of America National Trust
and Savings Association
By: /s/ J. Xxxxxx Xxxxx
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J. Xxxxxx Xxxxx
Vice President
Xxxxxxxx Incorporated
By: /s/ X. X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President - Human
Resources and Assistant
Secretary
By: /s/ X. X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President, Treasurer,
Secretary, And Chief
Financial Officer
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