SIXTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT AND WAIVER
This SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT AND WAIVER (this "Amendment and Waiver") is made as of June 28, 2002
among LaSalle Bank National Association, a national banking association,
individually (in such capacity, the "Lender") and as agent (in such capacity,
the "Agent"), Westell Technologies, Inc., a Delaware corporation
("Technologies"), Westell, Inc., an Illinois corporation ("Westell"), Westell
International, Inc., a Delaware corporation ("International"), Conference Plus,
Inc., a Delaware corporation ("CPI"), and Teltrend LLC, a Delaware limited
liability company and successor by merger to Teltrend, Inc. ("Teltrend," and
together with Technologies, Westell, International and CPI, being, collectively,
the "Borrowers").
BACKGROUND
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A. The Agent, the Lender and the Borrowers are party to that
certain Amended and Restated Loan and Security Agreement dated as of August 31,
2000 (as the same has been and may hereafter be amended, restated, supplemented
or otherwise modified from time to time, the "Loan Agreement"), pursuant to
which the Lender has made and may hereafter make certain loans, advances and
other financial accommodations to the Borrowers and the Borrowers have granted
to the Agent, for the benefit of the Lender and any other lenders who from time
to time may become party to the Loan Agreement, a lien on and a security
interest in all of the Borrowers' real, personal and intellectual property.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Loan Agreement.
B. The Borrowers and the Lenders are parties to a certain
Amended and Restated Revolving Note dated as of May 30, 2002 in the original
principal amount of $35,000,000 (the "Revolving Note").
C. Pursuant to the Loan Agreement, the Xxxxxxx X. Xxxxxxx
Trust under agreement Xxxxxxxx X. Xxxxx Children's Trust dated December 28,
1989, The Xxxxxxx Xxxxx Xxxxxxx Trust dated December 31, 1970, Xxxxxxx X.
XxXxxxxxx Trust under agreement Xxxxxxxx X. Xxxxx Children's Trust dated
December 28, 1989, The Xxxxxxx X. XxXxxxxxx Trust dated December 31, 1970,
Xxxxxx X. Xxxxx III Trust under agreement Xxxxxxxx X. Xxxxx Children's Trust
dated December 28, 1989, and The Xxxxxx Xxxxxxx Xxxxx Trust Number Two dated
December 30, 1974 (collectively, "Guarantors") executed a certain Guaranty (as
amended, the "Guaranty") and a certain Securities Pledge Agreement (as amended,
the "Pledge Agreement"), each dated as of June 29, 2001 and made in favor of
Agent on behalf of Lenders.
D. Borrowers have informed Agent that they desire to enter
this Amendment and Waiver to, among other things, (i) provide for a term loan,
(ii) reduce the maximum available Revolving Loan Facility, (iii) modify the
termination date of the revolving line of credit, (iv) terminate the Guaranty
and the Pledge Agreement, (v) grant waivers with respect to Borrowers'
non-compliance with certain covenants contained in the Loan Agreement, and (vi)
otherwise modify Borrowers' Obligations as provided herein.
E. Agent is willing to so amend the Loan Agreement and grant
such waivers upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual promises herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1 AMENDMENTS TO LOAN AGREEMENT
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1.1 Section 1.1 of the Loan Agreement is hereby amended as
follows:
(a) The following definitions are hereby added thereto in the
proper alphabetical order:
"Geneva Property" means that parcel of land owned by
Teltrend and located at the southwest corner of Xxxxxxx Road and Xxxxx
Road, Geneva, Illinois.
"Mortgage" means that certain Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing dated as
of September 4, 2001 by Teltrend in favor of Agent, on behalf of
Lenders, for the Geneva Property, as the same has been or may hereafter
be amended, restated, supplemented or otherwise modified from time to
time.
"Term Loan" shall mean the direct advance made by the
Lender to the Borrowers in the form of a term loan under and pursuant
to this Agreement, as set forth in Section 2.1(b) of this Agreement."
"Term Loan Commitment" shall mean with respect to all
applicable Lenders, Five Million and 00/100 Dollars ($5,000,000.00),
and with respect to any Lender shall mean the amount set forth next to
its name on the signature pages hereto (or any amendment hereto) as its
Term Loan Commitment."
"Term Loan Reserve" shall mean at any time the
amount, if any, by which $5,000,000 exceeds the outstanding principal
balance of the Term Loan.
"Term Note" shall have the meaning set forth in
Section 2.1(b) hereof."
(b) The following definitions are hereby amended and restated
in their entirety to read as follows:
"Borrowing Base" means, as at any date the amount thereof is
determined and subject to the other terms of this Agreement, (a) the
sum of (i) 85% of the face value of the Eligible Accounts, less
unapplied cash and (ii) the lesser of (A) 30% of the value of the
Eligible Inventory and (B) the Inventory Borrowing Cap, minus (b) the
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sum of the undrawn face amount of any Letters of Credit outstanding,
unreimbursed draws with respect to Letters of Credit, and the aggregate
outstanding amount of Borrowers' exposure under Permitted Swap
Obligations as determined by Bank, minus (c) such other reserves as the
Agent, at the direction of the Majority Lenders in their sole
discretion, may establish from time to time by delivery of written
notice thereof at least twenty (20) days prior to establishment of any
such reserves."
"Commitments" shall mean collectively the Revolving Loan
Commitments and the Term Loan Commitment.
"Loans" shall mean the collective reference to the Revolving
Loans and the Term Loan.
"Maximum Revolving Credit Facility" means, at any time,
$30,000,000.
"Notes" shall mean the Revolving Loan Notes and the Term Note.
"Pro Rata Share" shall mean, with respect to any Lender, a
fraction (expressed as a percentage), the numerator of which is equal
to the sum of (a) such Lender's Revolving Loan Commitment, plus (b)
such Lender's Term Loan Commitment, and the denominator of which is
equal to the sum of all Lenders' Commitments.
(c) The definition of "Revolving Loan Termination Date" is
hereby changed to "Termination Date" and is further amended by deleting the date
"June 30, 2002" and inserting in its place the date "June 30, 2003."
(d) The definition of "Majority Lenders" is hereby amended by
adding at the end of such definition the following language:
"; provided, however, if any provision of this Agreement
requires action by the Majority Lenders and (i) relates to the
extension of the maturity of the Term Loan, an adverse modification of
the payment schedule, the amount of principal or the calculation or
amount of interest of the Term Loan or of this clause (i), then
"Majority Lenders" shall mean Lenders holding at least 67% of the
outstanding principal amount of the Term Loan, or (ii) relates to the
extension of the maturity of the Revolving Loan, or an adverse
modification of the amount of principal or the calculation or amount of
interest of the Revolving Loan or of this clause (ii), then "Majority
Lenders" shall mean Lenders holding at least 67% of the Revolving Loan
Commitment."
(e) The definition of "CPI Stock Option Plan" is hereby
amended by adding at the end of such definition the following language:
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"and the CPI 2002 Non-Qualified Stock Plan, in either
case, as the same has been or may hereinafter be amended, restated,
supplemented, or otherwise modified from time to time with the consent
of the Agent."
(f) The following definitions are hereby deleted:
"Guarantors," "Guarantors' Liabilities," "Guaranty," "Pledged Securities,"
"Pledged Securities Value," and "Securities Pledge Agreement" and all references
thereto in the Loan Agreement shall be disregarded.
1.2 All references in the Loan Agreement to "Revolving Loan
Termination Date" shall hereafter be deemed to refer to the Termination Date.
1.3 With the exception of Sections 1.1, 2.1(a), 2.2, 3.4, and
3.5(b), all other references in the Loan Agreement to a "Revolving Loan" or the
"Revolving Loans" shall hereafter be deemed to refer to the Loans (as such term
is amended hereby), and all references to "Revolving Loan Notes" shall hereafter
be deemed to refer to the Notes (as such term is amended hereby), except, in
each case, where such interpretation would be wholly inapplicable.
1.4 Section 2.1 of the Loan Agreement is hereby amended by
renumbering it as "Section 2.1(a)" and by restating the first paragraph thereof
in its entirety to read as follows:
"Subject to the terms and provisions of this Agreement and the
other Loan Documents, the Lenders may, each in its sole discretion,
severally and not jointly, make revolving loans and advances (the
"Revolving Loans") to Borrowers, from time to time until the
Termination Date, not to exceed each Lender's Revolving Loan Commitment
Percentage of the Revolving Loans requested by Borrowers, in an
aggregate amount of Revolving Loans not to exceed (A) the lesser of (i)
the Borrowing Base or (ii) the Maximum Revolving Credit Facility, minus
the aggregate undrawn face amount of any Letters of Credit outstanding
at such time and any unreimbursed drawings with respect to Letters of
Credit, minus (B) the Term Loan Reserve, if any, and in the case of
each Lender, up to but not exceeding each Lender's Revolving Loan
Commitment."
1.5 Section 2.1 of the Loan Agreement is hereby amended by
redesignating Exhibit C, the Form of Revolving Loan Note, as "Exhibit C-1".
1.6 A new Section 2.1(b) is hereby added to the Loan Agreement
as follows:
"(b) Term Loan Commitment. Subject to the terms and conditions
of this Agreement and the other Loan Documents, and in reliance upon
the representations and warranties of the Borrowers set forth herein
and in the other Loan Documents, the Lenders having any Term Loan
Commitment (as set forth on the signature pages to the amendment hereto
creating such facility) hereby severally agree to make a Term Loan
equal to its respective Term Loan Commitment. The Term Loan shall be
made to the Borrowers in a single principal advance on June 28, 2002.
The Term Loan shall be evidenced by, and shall be repayable in
accordance with, the terms hereof and the Term Note in the form of
Exhibit C-2 hereto (the "Term Note")."
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1.7 Section 3.4 of the Loan Agreement is hereby amended by
inserting a new sentence at the end of such section to read as follows:
"Borrower shall not be permitted to voluntarily prepay any
amounts outstanding under the Term Loan prior to the repayment of all
other Obligations outstanding under the Loan Documents (including
without limitation the payment of, or providing cash collateral for,
the undrawn face amount of any outstanding Letters of Credit)."
1.8 Section 3.5 of the Loan Agreement is hereby amended by (i)
designating the existing text thereof as clause "(a)" and inserting the
following as a new subsection (b) thereto:
"(b) Lenders shall apply any Mandatory Prepayments first to
any amounts outstanding under any Revolving Loan (which Mandatory
Prepayments shall be available for reborrowing hereunder subject to the
terms hereof). After the outstanding principal amounts of all Revolving
Loans have been reduced to zero, Lenders shall apply Mandatory
Prepayments to the Term Loan. In no event shall Borrowers be permitted
to reborrow amounts prepaid and applied to the Term Loan. In the case
of all prepayments, whether voluntary or mandatory, such payments shall
be accompanied by payment of all accrued and unpaid interest on the
Loans being prepaid."
1.9 Section 3.6 of the Loan Agreement is hereby amended by
deleting the second sentence thereof in its entirety.
1.10 Section 8.1 of the Loan Agreement is hereby amended by
deleting the word "or" in front of clause (C) and inserting between clause (C)
and the words "so long as" the following language:
", or (D) the sale of the Geneva Property on or prior to June
30, 2003 for a cash purchase price payable at the closing of such sale
of at least $1,700,000, the entire proceeds (including amounts in
excess of $1,700,000) of which, (notwithstanding clause (ii) below)
shall be applied in accordance with Section 3.5(a)(i) and may be
reborrowed subject to the other provisions of this Agreement,"
1.11 Section 8.1 of the Loan Agreement is hereby further
amended by adding after the first sentence thereof the following language:
"In the event that Teltrend consummates a sale of the land
secured by the Mortgage in accordance with clause (D), above, Agent
hereby agrees to release the Mortgage."
1.12 Section 8.17 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
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"8.17 Capital Expenditures. Make or incur any Capital
Expenditures in excess of (i) $6,500,000 in their 2003 Fiscal Year,
(ii) $7,000,000 in each of their 2004 Fiscal Year or any Fiscal Year
thereafter."
1.13 Section 11.2 of the Loan Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
"11.2 EBITDA. Borrowers shall have on each date set forth
below, a minimum EBITDA: (a) for each of the following dates, measured
on a year to date basis ending on such date:
Date EBITDA
---- ------
June 30, 2002 $3,400,000
July 31, 2002 $4,400,000
August 31, 2002 $5,900,000
September 30, 2002 $7,400,000
October 31, 2002 $8,300,000
November 30, 2003 $10,300,000
December 31, 2003 $11,700,000
January 31, 2003 $13,000,000
February 28, 2003 $14,500,000
(b) as at the end of each month during each of the
following periods for the twelve-month period ending on such date,
commencing March 31, 2003 through and including June 30, 2003, not less
than $15,700,000 as of such date.
1.14 The Loan Agreement is hereby amended by deleting Section
11.3(a) in its entirety and substituting the following therefor:
"11.3(a) [Reserved]."
1.15 Section 11.3(b) of the Loan Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"(b) Tangible Net Worth. Commencing with June 2002, Borrowers
shall maintain, measured on a monthly basis as at the end of each of
the following months, the minimum Tangible Net Worth set forth opposite
such date set forth below (parentheses denote negative):
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Date Tangible Net Worth
---- ------------------
June 30, 2002 $(13,100,000)
July 31, 2002 $(13,300,000)
August 31, 2002 $(10,300,000)
September 30, 2002 $(9,900,000)
October 31, 2002 $(10,300,000)
November 30, 2003 $(9,000,000)
December 31, 2003 $(8,700,000)
January 31, 2003 $(8,500,000)
February 28, 2003 $(7,900,000)
As of the last day of each month commencing March 31, 2003
through and including June 30, 2003, Borrowers shall maintain a minimum Tangible
Net Worth of not less than negative $7,500,000 as of such date."
1.16 Section 12.12 of the Loan Agreement is hereby amended in
clause (b) by deleting the words "fifty-one percent (51%)" and substituting the
words "forty percent (40%)" therefor.
1.17 The Loan Agreement is hereby amended by deleting Section
12.13 in its entirety and substituting the following therefor:
"12.13 [Reserved]."
1.18 Schedule 7.27 to the Loan Agreement is hereby deleted in
its entirety and replaced with Schedule 1.18 attached hereto, it being
acknowledged that such schedule shall be delivered by Borrowers by July 8, 2002,
and failure to deliver by such date shall constitute an Event of Default.
SECTION 2 REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Agent to amend the Loan Agreement and grant the
waiver set forth herein, Borrowers jointly and severally represent and warrant
to Agent that:
2.1 Representations and Warranties. On the date hereof, the
representations and warranties and covenants set forth in the Loan Agreement (as
modified by this Amendment and Waiver), are true and correct with the same
effect as though such representations and warranties and covenants had been made
on the date hereof, except to the extent that such representations and
warranties and covenants expressly relate to an earlier date.
2.2. Corporate Authority of Borrowers. Borrowers have full
power and authority to enter into this Amendment and Waiver, and to incur and
perform the obligations provided for under this Amendment and Waiver and the
Loan Agreement, all of which have been duly authorized by all proper and
necessary corporate action. No consent or approval of stockholders or of any
public authority or regulatory body is required as a condition to the validity
or enforceability of this Amendment and Waiver which has not been obtained.
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2.3 Amendment and Waiver as Binding Agreement. This Amendment
and Waiver constitutes the valid and legally binding obligation of Borrowers,
fully enforceable against Borrowers, in accordance with its terms.
2.4. No Conflicting Agreements. The execution and performance
by the Borrowers of this Amendment and Waiver will not (i) violate any provision
of law, any order of any court or other agency of government, or the Articles of
Incorporation, Certificate of Formation, Operating Agreement or Bylaws of
Borrowers, (ii) violate any indenture, contract, agreement or other instrument
to which Borrowers are a party, or by which any of their property is bound, or
be in conflict with, result in a breach of or constitute (with due notice and/or
lapse of time) a default under, any such indenture, contract, agreement or other
instrument or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of
Borrowers.
SECTION 3 CONDITIONS PRECEDENT.
--------------------
The agreement by Agent to amend the Loan Agreement and grant
the waivers is subject to the following conditions precedent:
3.1 Revolving Note. Execution and delivery by Borrowers of a
Revolving Note in the form of Exhibit A hereto.
3.2 Term Note. Execution and delivery by Borrowers of a Term
Note in the form of Exhibit B hereto.
3.3 Release of Guaranty and Securities Pledge Agreement.
Execution and delivery by Agent of a Release of Guaranty and Securities Pledge
Agreement in the form of Exhibit C hereto.
3.4 Reaffirmation of Stock Pledge Agreement. Execution and
delivery by Technologies of a reaffirmation of that certain Stock Pledge
Agreement dated as of August 31, 2000, between Technologies and Agent in the
form of Exhibit D hereto.
3.5 Mortgage Amendment. Second Amendment to Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing dated as of June
28, 2002 between Teltrend and Agent in the form of Exhibit E hereto.
3.6 Reaffirmation of Subordination Agreement. Execution and
delivery by Solectron Corporation and Solectron Technology SDN.BHD. of that
certain Subordination Agreement dated as of May 30, 2002 in the form of Exhibit
F hereto.
3.7 Corporate Authority. Borrowers shall have provided to
Agent certified copies of the unanimous written consent of their Boards of
Directors in a form reasonably acceptable to Agent authorizing the execution,
delivery and performance by the Borrowers of this Amendment and Waiver and the
agreements, instruments and documents executed in connection herewith.
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3.8 Fee. Borrowers shall have paid to Agent for its own
account a restructuring fee in the amount of $300,000.
3.9 Borrowers shall have delivered to the Agent each and every
agreement, document, note, release, guaranty, certificate, notice, affidavit,
exhibit, schedule, resolution, legal opinion, assignment, security agreement or
financing statement which the Agent may reasonably request from the Borrowers,
in form and substance satisfactory to Agent, to effect the intent of this
Amendment and Waiver.
SECTION 4 WAIVERS
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4.1 The Bank hereby waives Borrowers' failure to be in
compliance with the Tangible Net Worth and EBITDA covenants as of February 28,
2002, March 31, 2002, April 30, 2002 and May 31, 2002, and any Events of Default
created thereby, solely as of those dates.
4.2 The Agent hereby waives Borrowers failure to be in
compliance with the Net Worth covenants as of December 31, 2001 and March 31,
2002, and any Events of Default created thereby, solely as of those dates.
The foregoing waivers shall be limited waivers and shall not constitute
a waiver of any other or subsequent violations of the Loan Agreement, whether of
a different or like nature, nor shall such waivers constitute a course of
conduct or dealing.
SECTION 5 REAFFIRMATION AND ACKNOWLEDGMENT
--------------------------------
Technologies, Westell, CPI and Teltrend (together, the
"Pledgors") are each party to both (i) a Security Agreement and Mortgage -
Trademarks and Patents and (ii) a Security Interest Agreement - Patents, each
dated as of August 31, 2000 (the "Security Agreements") pursuant to which
Pledgors granted to Agent a lien on and security interest in certain of Pledgors
patents and trademarks as described therein. Pledgors hereby expressly reaffirm
and assume all of their obligations and liabilities as set forth in the Security
Agreements, agree that the obligations secured thereby shall include all
obligations of Borrowers to Agent under the Loan Agreement, as amended from time
to time, including this Amendment and Waiver, and agree to be bound by and abide
by and operate and perform under and pursuant to and comply fully with all of
the terms, conditions, provisions, agreements, representations, undertakings,
warranties, and covenants contained in the Security Agreements, insofar as such
obligations and liabilities may be modified by this Amendment and Waiver.
SECTION 6 MISCELLANEOUS PROVISIONS.
-------------------------
6.1 To the extent the provisions of this Amendment and Waiver
differ from or are inconsistent with the terms of the Loan Agreement or any of
the Loan Documents, the provision of this Amendment and Waiver shall govern;
otherwise, the terms and provisions of the Loan Agreement shall remain in full
force and effect and are hereby affirmed, confirmed and ratified in all
respects. Borrowers ratify, confirm and affirm without condition, all liens and
security interests granted to Agent pursuant to the Loan Agreement and the Loan
Documents, and such liens and security interests shall continue to secure the
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obligations and liabilities of Borrowers to Agent, including but not limited to,
all loans made by Agent to the Borrowers under the Loan Agreement as amended by
this Amendment and Waiver.
6.2 This Amendment and Waiver shall be construed in accordance
with and governed by the laws of the State of Illinois, and the obligations of
Borrowers under this Amendment and Waiver are and shall arise absolutely and
unconditionally upon the execution and delivery of this Amendment and Waiver.
6.3 This Amendment and Waiver may be executed in any number of
counterparts.
6.4 Borrowers hereby agree to pay all out-of-pocket expenses
incurred by Agent in connection with the preparation, negotiation and
consummation of this Amendment and Waiver, and all other documents related
thereto, including without limitation, the reasonable fees and expense of
Agent's counsel, and any filing fees required in connection with the filing of
any documents necessary to consummate the provisions of this Amendment and
Waiver.
6.5 On or after the effective date hereof, each reference in
the Loan Agreement or any of the Loan Documents to this "Agreement" or words of
like import, shall unless the context otherwise requires, be deemed to refer to
the Loan Agreement as amended hereby.
6.6 The Agent and the Lenders hereby consent to the adoption
by CPI of the CPI 2002 Nonqualified Stock Plan in the form of Exhibit G attached
hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Borrowers and Agent has caused this Amendment and
Waiver to be duly executed by their duly authorized officers, all as of the date
and year first above written.
BORROWERS: WESTELL TECHNOLOGIES, INC.
By: ___________________________________
Title: ___________________________________
WESTELL, INC.
By: ___________________________________
Title: ___________________________________
WESTELL INTERNATIONAL, INC.
By: ___________________________________
Title: ___________________________________
CONFERENCE PLUS, INC.
By: ___________________________________
Title: ___________________________________
TELTREND LLC.
By: ___________________________________
Title: ___________________________________
Address: 000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
AGENT AND LENDER: LASALLE BANK NATIONAL ASSOCIATION
By: ___________________________________
Revolving Loan Commitment: Title: ___________________________________
$30,000,000 Address: 000 Xxxxx XxXxxxx Xxxxxx
Percentage: 100% Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxx
Term Loan Commitment:
$5,000,000
Percentage: 100%
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Exhibit A
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AMENDED AND RESTATED REVOLVING NOTE
$30,000,000 June 28, 2002
WESTELL TECHNOLOGIES, INC., WESTELL, INC., WESTELL
INTERNATIONAL, INC., CONFERENCE PLUS, INC. and TELTREND LLC (collectively,
"Borrowers"), hereby jointly and severally promise to pay to the order of
LaSalle Bank National Association (the "Lender"), on June 30, 2003 the principal
sum of Thirty Million and No/100 Dollars ($30,000,000), or such lesser amount of
all of the then outstanding advances made by the Lender to Borrowers pursuant to
Section 2.1 of the "Loan Agreement" (as hereinafter defined), together with
interest on any and all principal amounts remaining unpaid hereunder from time
to time from the date hereof until paid, at the rate(s) set forth in Section
2.10 of the Loan Agreement, payable on the last day of each Interest Period (as
such term is defined in the Loan Agreement), and continuing until the Revolving
Loans (as such term is defined in the Loan Agreement) are paid in full.
Any amount of interest or principal hereof which is not paid
when due, whether on the last day of an Interest Period, at stated maturity, by
acceleration or otherwise, shall bear interest payable on demand at the Default
Rate (as such term is defined in the Loan Agreement).
All payments of principal and interest on this Note shall be
payable in lawful money of the United States of America. In no event shall the
interest payable exceed the highest rate permitted by law. Principal and
interest shall be paid to Lender at its office at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, or at such other place as the holder of this Note may
designate in writing to Borrowers. All payments hereunder shall be applied as
provided in the Loan Agreement. In determining Borrowers' liability to the
Lender hereunder, the books and records of the Lender shall be controlling
absent arithmetic or manifest or demonstrable error.
This Note evidences certain indebtedness incurred under the
Amended and Restated Loan and Security Agreement, dated August 31, 2000 between
Westell Technologies, Inc., Westell, Inc., Westell International, Inc.,
Conference Plus, Inc., Teltrend LLC (as successor to Teltrend, Inc.), and the
financial institutions from time to time parties thereto, including the Lender
(collectively, the "Lenders"), and LaSalle Bank National Association, as agent
(the "Agent") for the Lenders (as heretofore or hereafter amended, restated,
supplemented or otherwise modified, the "Loan Agreement"), to which reference is
hereby made for a statement of the terms and conditions under which the due date
of this Note or any payment thereon may be accelerated or is automatically
accelerated, or under which this Note may be prepaid or is required to be
prepaid. All capitalized terms used herein shall, unless otherwise defined
herein, have the meanings set forth in the Loan Agreement. The holder of this
Note is entitled to all of the benefits provided in said Loan Agreement and the
Loan Documents referred to therein. Borrowers agree to pay all costs of
collection and all reasonable attorneys' fees paid or incurred in enforcing any
of the Lender's rights hereunder promptly on demand of the Lender and as more
fully set forth in the Loan Agreement.
This Note may be prepaid in whole or in part, and shall be
prepaid as appropriate, in accordance with the terms of the Loan Agreement.
Except as set forth in the Loan Agreement, the Borrowers,
endorsers and all other parties to this Note waive presentment, demand, notice,
protest and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note and the Loan
Agreement. In any action on this Note, the Lender or its assignee need not file
the original of this Note, but need only file a photocopy of this Note certified
by the Lender or such assignee to be a true and correct copy of this Note.
This is the Revolving Note referred to in the Loan Agreement.
This Note is secured by, among other things, a security interest in the
Collateral granted to the Agent pursuant to Section 4 of the Loan Agreement.
No delay on the part of the Lender in exercising any right
under this Note, any security agreement, guaranty or other undertaking affecting
this Note, shall operate as a waiver of such right or any other right under this
Note, nor shall any omission in exercising any right on the part of the Lender
under this Note operate as a waiver of any other rights.
Upon the occurrence of an Event of Default which is an Uncured
Default under the Loan Agreement, the outstanding indebtedness evidenced by this
Note, together with all accrued interest, shall be due and payable in accordance
with the terms of the Loan Agreement, without notice to or demand upon the
Borrowers except as otherwise provided in the Loan Agreement, and the Lender may
exercise all of its rights and remedies reserved to it under the Loan Agreement
or applicable law.
If any provision of this Note or the application thereof to
any party or circumstance is held invalid or unenforceable, the remainder of
this Note and the application of such provision to other parties or
circumstances will not be affected thereby and the provisions of this Note shall
be severable in any such instance.
This Note shall be in replacement of and in substitution for
that certain Revolving Loan Note dated May 30, 2002, in the original principal
amount of $35,000,000, made by Westell Technologies, Inc., Westell, Inc.,
Westell International, Inc., Conference Plus, Inc., and Teltrend LLC and payable
to the order of Lender (the "Original Note"). The indebtedness evidenced by the
Original Note is continuing indebtedness, and nothing herein shall be deemed to
constitute a payment, settlement or novation of the Original Note, or to release
or otherwise adversely affect any lien, mortgage or security interest securing
such indebtedness or any rights of the Lender against any guarantor, surety or
other party primarily or secondarily liable for such indebtedness.
BORROWERS HEREBY WAIVE ANY RIGHT BORROWERS MAY NOW OR
HEREAFTER HAVE TO SUBMIT ANY CLAIM, ISSUE OR DEFENSE ARISING HEREUNDER OR UNDER
THE OTHER DOCUMENTS RELATING TO THIS NOTE TO A TRIAL BY JURY.
This Note shall be deemed to have been made under and shall be
governed in accordance with the internal laws and not the conflict of law rules
of the State of Illinois.
WESTELL TECHNOLOGIES, INC.
By: ________________________________
Title: ____________________________
WESTELL, INC.
By: ________________________________
Title:______________________________
WESTELL INTERNATIONAL, INC.
By:_________________________________
Title:______________________________
CONFERENCE PLUS, INC.
By:_________________________________
Title:______________________________
TELTREND LLC
By: ________________________________
Title: _____________________________
Exhibit B
---------
TERM NOTE
$5,000,000.00 June 28, 0000
Xxxxxxx, Xxxxxxxx
FOR VALUE RECEIVED, WESTELL TECHNOLOGIES, INC., WESTELL, INC., WESTELL
INTERNATIONAL, INC., CONFERENCE PLUS, INC. and TELTREND LLC (collectively,
"Borrowers"), hereby jointly and severally promise to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION, a national banking association (hereinafter,
together with any holder hereof, called the "Lender"), whose address is 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on or before June 30, 2003 (the
"Maturity Date"), the principal sum of Five Million and 00/100 DOLLARS
($5,000,000.00), which amount is the principal amount of the Term Loan made by
the Lender to the Borrowers under and pursuant to that certain Amended and
Restated Loan and Security Agreement dated as of August 31, 2000 (as amended,
restated, supplemented or modified from time to time, the "Loan Agreement"),
executed by and between the Borrowers and the Lender, as Agent and as a lender,
and the other lenders from time to time a party thereto, together with interest
(computed on the actual number of days elapsed on the basis of a 360 day year)
on the principal amount of the Term Loan outstanding from time to time as
provided in Section 2.10 of the Loan Agreement. Capitalized words and phrases
not otherwise defined herein shall have the meanings assigned thereto in the
Loan Agreement.
The outstanding principal of this Note, and all accrued interest
thereon, shall be payable as follows:
(a) installments of interest only on the principal balance of
this Note outstanding from time to time commencing on June 30, 2002 and
continuing on the last day of each Interest Period (as such term is
defined in the Loan Agreement); and
(b) a final installment equal to the remaining outstanding
principal balance of this Note, and all accrued and unpaid interest
thereon, on the Maturity Date, unless payable sooner pursuant to the
provisions of the Loan Agreement.
Any amount of interest or principal hereof which is not paid when due,
whether on the last day of an Interest Period, at stated maturity, by
acceleration or otherwise, shall bear interest payable on demand at the Default
Rate (as such term is defined in the Loan Agreement).
This Note evidences the Term Loan incurred by the Borrowers under and
pursuant to the Loan Agreement, to which reference is hereby made for a
statement of the terms and conditions under which the due date of this Note or
any payment thereon may be accelerated or is automatically accelerated, or under
which this Note may be prepaid or is required to be prepaid. The holder of this
Note is entitled to all of the benefits provided in said Loan Agreement and the
Loan Documents referred to therein. Borrowers agree to pay all costs of
collection and all reasonable attorneys' fees paid or incurred in enforcing any
of the Lender's rights hereunder promptly on demand of the Lender and as more
fully set forth in the Loan Agreement.
All payments of principal and interest on this Note shall be payable in
lawful money of the United States of America. In no event shall the interest
payable exceed the highest rate permitted by law. Principal and interest shall
be paid to Lender at its office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as the holder of this Note may designate in
writing to Borrowers. All payments hereunder shall be applied as provided in the
Loan Agreement. In determining Borrowers' liability to the Lender hereunder, the
books and records of the Lender shall be controlling absent arithmetic or
manifest or demonstrable error.
This Note may not be voluntarily prepaid, but shall be prepaid as
appropriate, in accordance with the terms of the Loan Agreement.
Except as set forth in the Loan Agreement, the Borrowers, endorsers and
all other parties to this Note waive presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note and the Loan Agreement. In any
action on this Note, the Lender or its assignee need not file the original of
this Note, but need only file a photocopy of this Note certified by the Lender
or such assignee to be a true and correct copy of this Note.
This Note is secured by, among other things, a security interest in the
Collateral granted to the Agent pursuant to Section 4 of the Loan Agreement.
No delay on the part of the Lender in exercising any right under this
Note, any security agreement, guaranty or other undertaking affecting this Note,
shall operate as a waiver of such right or any other right under this Note, nor
shall any omission in exercising any right on the part of the Lender under this
Note operate as a waiver of any other rights.
Upon the occurrence of an Event of Default which is an Uncured Default
under the Loan Agreement, the outstanding indebtedness evidenced by this Note,
together with all accrued interest, shall be due and payable in accordance with
the terms of the Loan Agreement, without notice to or demand upon the Borrowers
except as otherwise provided in the Loan Agreement, and the Lender may exercise
all of its rights and remedies reserved to it under the Loan Agreement or
applicable law.
The Term Loan evidenced hereby has been made and/or issued and this
Note has been delivered at the Lender's main office set forth above. This Note
shall be governed and construed in accordance with the laws of the State of
Illinois, in which state it shall be performed, and shall be binding upon the
Borrowers, and their legal representatives, successors, and assigns. Wherever
possible, each provision of this Note shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note
shall be prohibited by or be invalid under such law, such provision shall be
severable, and be ineffective to the extent of such prohibition or invalidity,
without invalidating the remaining provisions of this Note. The term "Borrowers"
as used herein shall mean all parties signing this Note, and each one of them,
and all such parties, their respective successors and assigns, shall be jointly
and severally obligated hereunder.
2
BORROWERS HEREBY WAIVE ANY RIGHT BORROWERS MAY NOW OR HEREAFTER HAVE TO
SUBMIT ANY CLAIM, ISSUE OR DEFENSE ARISING HEREUNDER OR UNDER THE OTHER
DOCUMENTS RELATING TO THIS NOTE TO A TRIAL BY JURY.
IN WITNESS WHEREOF, the Borrowers have executed this Note as of the
date set forth above.
WESTELL TECHNOLOGIES, INC.
By: ________________________________
Title: ____________________________
WESTELL, INC.
By: ________________________________
Title:______________________________
WESTELL INTERNATIONAL, INC.
By:_________________________________
Title:______________________________
CONFERENCE PLUS, INC.
By:_________________________________
Title:______________________________
TELTREND LLC
By: ________________________________
Title: _____________________________
3
Exhibit C
---------
RELEASE OF GUARANTY AND SECURITIES PLEDGE AGREEMENT
This Release of Guaranty and Securities Pledge Agreement (the
"Release") is made as of the 28th day of June, 2002 by LaSalle Bank National
Association, a national banking association, as agent (in such capacity,
"Agent") for the "Lenders" (as defined in the Loan Agreement referred to below)
(together, Agent and the Lenders, the "Releasing Parties"), in favor of Xxxxxxx
X. Xxxxxxx Trust under agreement Xxxxxxxx X. Xxxxx Children's Trust dated
December 28, 1989, The Xxxxxxx Xxxxx Xxxxxxx Trust dated December 31, 1970,
Xxxxxxx X. XxXxxxxxx Trust under agreement Xxxxxxxx X. Xxxxx Children's Trust
dated December 28, 1989, The Xxxxxxx X. XxXxxxxxx Trust dated December 31, 1970,
Xxxxxx X. Xxxxx III Trust under agreement Xxxxxxxx X. Xxxxx Children's Trust
dated December 28, 1989, and The Xxxxxx Xxxxxxx Xxxxx Trust Number Two dated
December 30, 1974 (collectively, "Guarantors").
WHEREAS, pursuant to that Amended and Restated Loan and Security
Agreement dated as of August 31, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement"; capitalized terms
used but not defined herein shall have the meanings set forth in the Loan
Agreement), Guarantors have previously executed and delivered to the Agent that
certain Guaranty (as amended, restated, supplemented or otherwise modified from
time to time, the "Guaranty") dated as of June 29, 2001, guarantying certain
obligations of Westell Technologies, Inc. and its subsidiaries (collectively,
"Borrowers").
WHEREAS, pursuant to the Loan Agreement, Guarantors delivered to Agent
a Securities Pledge Agreement dated as of June 29, 2001 (as amended, restated,
supplemented or otherwise modified from time to time, the "Pledge Agreement").
WHEREAS, Agent and the Borrowers (as defined in the Loan Agreement)
intend to enter into a Sixth Amendment to Amended and Restated Loan and Security
Agreement and Waiver (the "Sixth Amendment"), which, among other things,
provides for the release of the Guaranty and the Pledge Agreement by the
Releasing Parties.
NOW THEREFORE, the Releasing Parties hereby agree as follow:
1. Concurrent with the consummation of the Sixth Amendment, the Guaranty
shall be terminated, the Releasing Parties shall irrevocably discharge
and fully release Guarantors from their obligations and liabilities
under the Guaranty and, in accordance with the provisions thereof, the
Guaranty shall cease to be of any further force or effect.
2. Concurrent with the consummation of the Sixth Amendment, the Pledge
Agreement shall be terminated, the Releasing Parties shall irrevocably
discharge and fully release their lien on the Pledged Collateral (as
defined in the Pledge Agreement) of Guarantor granted to the Releasing
Parties under the Pledge Agreement and, in accordance with the
provisions thereof, the Pledge Agreement shall cease to be of any
further force or effect.
3. Lender hereby agrees that upon the effectiveness of this Release,
Lender shall notify Xxxxxxxxx Xxxxxxxx, Inc. that (i) Lender's security
interest in the Account (as defined in the Pledge Agreement) and (ii)
the Account Control Agreement by and between Lender and Xxxxxxxxx
Xxxxxxxx, Inc. dated as of June 29, 2001, are terminated.
4. This Release shall be governed by and construed in accordance with the
laws of the State of Illinois.
IN WITNESS WHEREOF, the undersigned has executed this Release as of the
date first written above.
AGENT AND LENDER: LASALLE BANK NATIONAL ASSOCIATION,
individually and as Agent
By:
-------------------------------------
Title:
----------------------------------
Exhibit D
---------
REAFFIRMATION OF STOCK PLEDGE AGREEMENT
This Reaffirmation of Stock Pledge Agreement dated as of June
28, 2002 (this "Reaffirmation") is entered into between WESTELL TECHNOLOGIES,
INC., a Delaware corporation (herein called the "Pledgor"), and LASALLE BANK
NATIONAL ASSOCIATION, as Agent (herein called the "Pledgee"), and has reference
to the following facts and circumstances:
A. Pursuant to that certain Amended and Restated Loan and
Security Agreement dated as of August 31, 2000, (herein as amended or modified
from time to time, the "Loan and Security Agreement") among Pledgee, Pledgor, as
Agent and as a Lender, and the other lenders from time to time a party thereto,
(together with its subsidiaries, Westell, Inc., Westell International, Inc.,
Conference Plus, Inc. and Teltrend LLC, collectively referred to hereinafter as
"Borrowers"), Pledgor granted Pledgee a security interest in its shares of
certain of the Borrowers pursuant to that certain Stock Pledge Agreement dated
as of August 31, 2000 and that certain Stock Pledge Agreement dated as of June
29, 2001 (each as amended, restated, supplemented or otherwise modified from
time to time, collectively, the "Pledge Agreements").
B. Borrowers desire to enter into a Sixth Amendment to Loan
and Security Agreement and Waiver dated as of the date hereof (the "Amendment
and Waiver") pursuant to which Pledgee has agreed to restructure certain
provisions of the Loan and Security Agreement.
C. Pledgor is financially interested in Borrowers.
D. Pledgor desires that Pledgee enter into the Amendment and
Waiver.
E. Pledgee is willing to enter into the Amendment and Waiver
only upon the condition that Pledgor execute and deliver this Reaffirmation in
favor of Pledgee.
NOW, THEREFORE, in consideration of the foregoing, Pledgor
hereby agrees as follows:
1 The preambles to this Reaffirmation are hereby incorporated
herein by this reference thereto.
2 Pledgor does hereby expressly ratify, confirm and affirm
without condition, all liens and security interests granted to the Pledgee
pursuant to the Pledge Agreements, and such liens and security interests shall
continue to secure the obligations and liabilities of Borrowers to Pledgee,
including but not limited to, all loans made by Pledgee to Borrowers under the
Loan and Security Agreement and all amendments thereto.
3. This Reaffirmation constitutes the valid and legally
binding obligation of Pledgor, fully enforceable against Pledgor, in accordance
with its terms.
4. This Reaffirmation shall inure to the benefit of Pledgee
and Lenders, their successors and assigns, and be binding upon Pledgor, and its
successors and assigns.
IN WITNESS WHEREOF, the Pledgor has executed this
Reaffirmation on the date above set forth.
WESTELL TECHNOLOGIES, INC.
By: ___________________________
Its: ___________________________
Exhibit E
---------
This instrument was prepared
by (and after recordation
should be returned to):
Xxxxx X. Xxxxx
Jenner & Block, LLC
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
SECOND AMENDMENT TO
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
This Second Amendment to Mortgage, Security Agreement, Assignment of
Leases and Rents and Fixture Filing (hereafter, this "Amendment"), is entered
into as of the 28th day of June, 2002, by and between Teltrend LLC, a Delaware
limited liability company, as successor in interest to Teltrend, Inc. (herein,
together with its successors and assigns, called the "Mortgagor") in favor of
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, having an
office at 000 Xxxxx XxXxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Mortgagee").
RECITALS
WHEREAS, Westell Technologies, Inc., Westell, Inc., Westell
International, Inc., Conference Plus, Inc., and Mortgagor, as successor by
merger with Teltrend, Inc. (collectively, the "Borrowers"), the financial
institutions from time to time parties thereto, including the Mortgagee
(collectively, the "Lenders"), and LaSalle Bank National Association, as agent
(the "Agent") for the Lenders, are parties to that certain Amended and Restated
Loan and Security Agreement dated as of August 31, 2000 (as the same has been
amended, restated, supplemented or otherwise modified from time to time, the
"Loan Agreement");
WHEREAS, the Borrowers are parties to that certain Amended and Restated
Revolving Note dated as of May 30, 2002 in the original principal amount of
$35,000,000 (the "Original Note");
WHEREAS, as security for the Indebtedness (as defined under the
Mortgage) under the Loan Agreement and the Original Note, Mortgagor, as
successor by merger with Teltrend, Inc., and Mortgagee are parties to a
Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing
dated as of September 4, 2001 and recorded in the office of the County Recorder
of Xxxx County, Illinois as Document No. 2001K104543, as amended by that certain
First Amendment to Mortgage, Security Agreement, Assignment of Leases and Rents
and Fixture Filing dated as of May 30, 2002 (as the same has been or shall be
amended, restated, supplemented or otherwise modified from time to time, the
"Mortgage"), pursuant to which the Mortgagor granted to Mortgagee a mortgage on
-1-
certain real property located in Xxxx County, Illinois and more particularly
described on Exhibit A attached hereto (the "Premises").
WHEREAS, the Mortgagor intends to execute and deliver to Mortgagee (i)
a Sixth Amendment to Amended and Restated Loan and Security Agreement and Waiver
(the "Amendment and Waiver"), (ii) an Amended and Restated Revolving Note in the
original principal amount of $30,000,000 in substitution for and replacement of
the Original Note (the "Amended Note"), and (iii) a Term Note in the original
principal amount of $5,000,000 (the "Term Note," and, together with the Amended
Note, the "Notes");
WHEREAS, Mortgagor and Mortgagee desire to amend the Mortgage as of the
Effective Date so as to provide that the Premises continue to secure the
obligations and liabilities of the Mortgagor to Mortgagee, as amended, under the
Amendment and Waiver and the Notes;
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Mortgagor and Mortgagee hereby agree as follows:
1. Amendments.
----------
1.1 All references in the Mortgage or in any other agreements
executed and/or delivered in connection therewith to the term "Mortgage" shall
hereafter be deemed to mean the Mortgage, as amended by this Amendment.
Capitalized terms used herein, which are defined in the Mortgage, unless
otherwise defined herein, shall have the meanings provided therefor in the
Mortgage.
1.2 The Mortgage is hereby amended by deleting the property
address listed on the cover page to Exhibit A.
1.3 The Mortgage is hereby amended to provide that the
Mortgage continues to secure the obligations and liabilities of the Mortgagor to
Mortgagee, in each case, under the Loan Agreement, the Notes, and all such other
instruments, documents and agreements executed and/or delivered in connection
therewith, in each case as the same have been amended.
1.4 The Mortgage is hereby amended to provide that the term
"Note" shall be amended to mean the Notes made by Mortgagor and payable to the
order of the Mortgagee at Chicago, Illinois.
1.5 Mortgagor hereby expressly affirms and assumes all of
Mortgagor's obligations and liabilities to Mortgagee as set forth in the
Mortgage and the other instruments, documents and agreements executed and/or
delivered in connection therewith, in each case as the same have been amended,
and agrees to be bound by and abide by and operate and perform under and
pursuant to and comply fully with all of the terms, conditions, provisions,
agreements, representations, undertakings, warranties, guarantees, indemnities
and covenants contained in the Mortgage and other applicable documents to which
such entity is a party, as such obligations and liabilities may have been
amended, and as amended by this Amendment.
-2-
1.6 The Mortgage is hereby amended in all other respects to
include and give effect to the foregoing amendments. As so amended, the Mortgage
shall remain in full force and effect and shall continue to constitute the valid
and binding obligation of the Mortgagor, enforceable in accordance with its
terms, and the Mortgagor hereby affirms and agrees to remain bound by the
agreements and covenants set forth in the Mortgage, as amended hereby. The
Mortgagor hereby affirms, certifies, makes and confirms all representations and
warranties set forth in the Mortgage, as amended hereby. Nothing herein shall be
deemed to constitute or shall be construed as a waiver of any rights, remedies
or security of or granted to the Mortgagor hereunder or under the Mortgage, and
no subordination of the Mortgagee's interest in or lien or mortgage on the
Collateral is intended or to be implied hereby.
2. Representations and Warranties.
------------------------------
On the date hereof, after giving effect to this Amendment,
Mortgagor represents and warrants to Mortgagee that:
2.1 The affirmative and negative covenants set forth in the
Mortgage are not currently being breached as of the date of this Amendment.
2.2 No Default (as such term is defined in the Mortgage) has
occurred and is continuing.
3. General Provisions.
------------------
3.1 As herein modified or amended, the Mortgage shall remain
in full force and effect and is hereby affirmed, confirmed and ratified in all
respects.
3.2 This Amendment shall be governed by and construed in
accordance with the laws of the State of Illinois.
3.3 On or after the effective date hereof, each reference in
the Mortgage or any other agreements or documents executed in connection
therewith to "this Mortgage" or words of like import, shall, unless the context
otherwise requires, be deemed to refer to the Mortgage as amended hereby.
3.4 This Amendment shall be binding upon the Mortgagor and its
successors, grantees and assigns, any subsequent owner or owners of the Premises
and all persons claiming under or through Mortgagor and shall inure to the
benefit of Mortgagee, its successors and assigns.
3.5 Mortgagor hereby agrees to pay all out-of-pocket expenses
incurred by Mortgagee in connection with the preparation, negotiation and
consummation of this Amendment, and all other documents related thereto,
including without limitation, the reasonable fees and expense of Mortgagee's
counsel, and any filing fees required in connection with the filing of any
documents necessary to consummate the provisions of this Amendment.
3.6 The recitals to this Amendment are hereby incorporated
into this Mortgage in their entirety and are deemed to be a part thereof.
-3-
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the day and year first above written.
Mortgagor:
TELTREND LLC, a Delaware limited liability
company
By: WESTELL, INC., its sole member
By:_______________________________
Title:______________________________
Accepted:
LASALLE BANK NATIONAL
ASSOCIATION, a national
banking association
By: ___________________________
Title: ___________________________
-4-
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, ___________________, a notary public in and for said County in the
State aforesaid, do hereby certify that _____________________, personally known
to me to be the _____________________ of Westell, Inc., an Illinois corporation,
the sole member of Teltrend LLC, a Delaware limited liability company, and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
they as such he signed and delivered the said instrument pursuant to proper
authority, as the free and voluntary act and deed of said corporation, for the
uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this ___ day of June, 2002.
------------------------------
Notary Public
My Commission expires:
----------------------
-5-
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, ___________________, a notary public in and for said County in the
State aforesaid, do hereby certify that _____________________, personally known
to me to be the _____________________ of the LaSalle Bank National Association,
a national banking association, and personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged they as such he signed and delivered the said
instrument pursuant to proper authority, as the free and voluntary act and deed
of said national banking association, for the uses and purposes therein set
forth.
GIVEN, under my hand and notarial seal this ___ day of June, 2002.
------------------------------
Notary Public
My Commission expires:
----------------------
-6-
EXHIBIT A TO FIRST AMENDMENT TO
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
Legal Description of the Premises
See attached.
Property Identification Number: 00-00-000-000
-7-
Exhibit F
---------
REAFFIRMATION OF
SUBORDINATION AGREEMENT
-----------------------
This Reaffirmation of Subordination Agreement (this
"Reaffirmation"), dated and effective as of the 28th day of June, 2002, is
executed by and between Solectron Corporation ("Solectron Corp.") and Solectron
Technology SDN.BHD. ("Solectron BHD", and, together with Solectron Corp.,
"Junior Creditor") and LaSalle Bank National Association ("Lender"), and has
reference to the following facts and circumstances:
A. Pursuant to that certain Amended and Restated Loan and
Security Agreement dated as of August 31, 2000, (as heretofore or hereafter
amended, restated, supplemented or otherwise modified from time to time, the
"Loan Agreement") by and among Lender, individually and as agent (in such
capacity, the "Agent"), the other Lenders from time to time a party thereto,
Westell Technologies, Inc., ("Technologies"), Westell, Inc., ("Westell"),
Westell International, Inc., ("International"), Conference Plus, Inc., ("CPI"),
and Teltrend LLC, as successor by merger to Teltrend, Inc. ("Teltrend," and
together with Technologies, Westell, International and CPI, being, collectively,
the "Borrowers"), Junior Creditor delivered to Lender a certain Subordination
Agreement dated as of May 30, 2002 (the "Subordination Agreement").
B. Borrowers intend to enter into a Sixth Amendment to Amended
and Restated Loan and Security Agreement and Waiver (herein, as amended or
modified from time to time, the "Amendment and Waiver") pursuant to which Lender
shall extend the maturity of Borrowers' revolving credit facility and modify and
waive certain financial covenants.
C. Junior Creditor will benefit from such modifications and
waivers.
D. Junior Creditor desires to induce Agent to execute, deliver
and perform the Amendment and Waiver of even date herewith.
E. Agent is willing to enter into the Amendment and Waiver
only upon the condition that Junior Creditor execute and deliver this
Reaffirmation in favor of Bank.
NOW, THEREFORE, in consideration of the foregoing, Junior
Creditor hereby agrees as follows:
1. The preambles to this Reaffirmation are hereby incorporated herein
by this reference thereto.
2. Junior Creditor hereby reaffirms and agrees that the term "Senior
Debt" as used in the Subordination Agreement shall include and refer to, among
other things, the obligations, indebtedness and liabilities of the Borrowers to
Agent and Lenders pursuant to the Loan Agreement as amended by the Amendment and
Waiver and pursuant to the other Loan Documents (as defined in the Loan
Agreement) as the same may have been, or may hereafter be, amended, restated,
supplemented or otherwise modified from time to time.
3. Junior Creditor hereby expressly reaffirms and assumes (on the same
basis as set forth in the Subordination Agreement) all of Junior Creditor's
undertakings, obligations and liabilities as set forth in the Subordination
Agreement, and agrees to be bound by and abide by and operate and perform under
and pursuant to and comply fully with all of the terms, conditions, provisions,
agreements, representations, undertakings, warranties, and covenants contained
in the Subordination Agreement, as such undertakings, obligations and
liabilities may be modified by the Amendment and Waiver and the related
amendments to the other Loan Documents.
4. This Reaffirmation shall inure to the benefit of Bank, its
successors and assigns and be binding upon Junior Creditor, its successors and
assigns.
SOLECTRON CORPORATION, a Delaware
corporation
By: _____________________________________
Title: __________________________________
SOLECTRON TECHNOLOGY SDN.BHD.
By: _____________________________________
Title: __________________________________
Exhibit G
---------
CPI 2002 Nonqualified Stock Plan
--------------------------------
(see attached)
