Exhibit 99.02
WAIVER AND FIRST AMENDMENT
THIS WAIVER AND FIRST AMENDMENT, dated as of November 1, 2002 (this
"Amendment"), to the Loan and Security Agreement, dated as of June 10, 2002 (the
"Loan Agreement"), among Del Global Technologies Corp., Bertan High Voltage
Corp., RFI Corporation and Del Medical Imaging Corp. (collectively, the
"Borrowers") and Transamerica Business Capital Corporation (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, (i) to waive certain Events of Default which have occurred
and are continuing and (ii) to amend certain provisions of the Loan Agreement,
each upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the Borrowers and the Lender agree as follows:
SECTION 1. Limited Waiver. Effective as of the date hereof, the Lender
hereby waives compliance with (a) Section 7.1(k)(i) of the Loan Agreement solely
to the extent of the Administrative Borrower's failure to deliver the annual
audited and certified Financial Statements required thereunder for the fiscal
year ended August 3, 2002 (the "2002 Financial Statements") and (b) Sections
8.1, 8.2, 8.3 and 8.4 of the Loan Agreement solely to the extent of the
Borrowers' failure to comply with each of the covenants contained therein for
the period through August 3, 2002, provided that the waiver hereunder shall
terminate on November 20, 2002 unless the Administrative Borrower delivers to
the Lender by such date (i) the 2002 Financial Statements and (ii) a revised
Business Plan covering the fiscal year ending August 2, 2003, in form and
substance satisfactory to the Lender, whereupon the Lender agrees to amend the
provisions of Article VIII of the Loan Agreement to give effect to the financial
projections contained in such revised Business Plan.
SECTION 2. Amendments to the Loan Agreement. Effective as of the date
hereof, the Loan Agreement is amended as follows:
(a) Section 2.1 is amended by deleting "and (C)" after
"Hicksville, New York" and substituting the following therefor:
", (C) a reserve in the amount of $1,500,000 until (I) the Lender has
received a revised Business Plan covering the fiscal year ending August
2, 2003, in form and substance reasonably satisfactory to the Lender,
and (II) the Lender and the Borrowers have amended the provisions of
Article VIII to give effect to the financial projections contained in
such revised Business Plan and (D)".
(b) Section 7.2(i) is amended as follows:
(i) by deleting "and" at the end of clause (iii) thereof;
(ii) by inserting a new clause (iii) as follows:
"(iii) Liens arising by operation of law from the sale of receivables
owed by Honeywell Aero (formerly known as AlliedSignal, Inc.) to RFI
and which have been sold by RFI to General Electric Capital Corporation
so long as the aggregate outstanding balance of such Receivables does
not exceed $50,000 at any time; and"; and
(iii) by renumbering clause (iii) as clause (iv).
SECTION 3. Condition 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, (b) payment of the costs and
expenses (including, without limitation, reasonable attorneys' fees) incurred by
the Lender in connection with this Amendment and (c) a waiver fee in the amount
of $25,000.
SECTION 4. 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.
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(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) Except as specified in Section 1 hereof, no Default has
occurred and is continuing.
SECTION 5. 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 waived or 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 6. 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).
SECTION 7. Counterparts; Telecopied 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 facsimile transmission with the
same force and effect as if the same were a fully executed and delivered
original manual counterpart.
SECTION 8. 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, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS)
AND DECISIONS OF THE STATE OF ILLINOIS.
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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.
BORROWERS
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chief Financial Officer
BERTAN HIGH VOLTAGE CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
RFI CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
DEL MEDICAL IMAGING CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
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LENDER
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TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Senior Vice President
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