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EXHIBIT 4.3
SECOND AMENDMENT
TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
This SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
("Second Amendment"), dated as of December 18, 1996, is made by Xxxxxxxx
Incorporated, a Delaware corporation (the "Borrower"), and Bank of America
National Trust and Savings Association (the "Bank"), with reference to the
following facts:
RECITALS
A. This Second Amendment amends that certain Fourth Amended
and Restated Loan Agreement dated as of May 16, 1996, by and between Borrower
and Bank, which was previously amended by a First Amendment dated as of June
27, 1996 (the "Loan Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth for such terms in the Loan
Agreement.
B. Borrower has requested and Bank, subject to certain matters
set forth herein, has agreed, to amend the Loan Agreement (i) to confirm Bank's
agreement to release Bank's security interest in any and all Collateral that
secures the Obligations, (ii) to change certain interest and loan fee
provisions, and (iii) to delete certain restrictions on Borrower's Capital
Expenditures. Borrower and Bank desire to amend the Loan Agreement as set
forth herein to reflect such agreements.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and
benefits contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, Borrower and Bank hereby
agree as follows:
1. RELEASE OF COLLATERAL AND RELATED AMENDMENTS TO LOAN
AGREEMENT
1.1 Release of Security Interest. Bank hereby
releases any security interest evidenced by or created under any Collateral
Document to the extent that such security interest secures an Obligation under
any Loan Document. Bank agrees that it shall promptly (and in no event later
than 45 days after the date Bank signs this Second Amendment) execute and
deliver to Borrower such UCC Termination Statements and other documents as are
reasonably requested by Borrower to evidence such release. The foregoing
release does not affect any security interest in favor of Bank that secures
obligations owing to Bank that are not evidenced by the Loan Documents,
including that certain real estate secured loan by Bank to AHF Ducommun.
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1.2 Related Amendments. To reflect the foregoing
release of the Bank's security interest in the Collateral, the Loan Agreement
is amended as follows:
a. Section 1.1 of the Loan Agreement is amended to delete
the definition of the terms "Collateral" and "Collateral Documents" in their
entirety.
b. Section 1.1 of the Loan Agreement is further amended to
delete the words "the Collateral Documents" in the third line of the
definition of the term "Loan Documents."
c. Sections 4.9, 5.10, 5.15, 9.1(i) and 10.11(a) of the
Loan Agreement are deleted in their entirety and left intentionally blank.
d. Section 5.11 of the Loan Agreement is amended to delete
the words "and of each of the Collateral Documents" in the third line
thereof.
e. Section 5.13 of the Loan Agreement is amended and
restated in its entirety to read as follows:
"5.13 Notice of Location Change. Promptly notify Bank,
in writing, of the occurrence of any change in the location of, or
the addition of, any branch office, any field office, any warehouse
or any other place of business of Borrower or any Subsidiary;
provided, however, that no such notification shall be required if
the change, together with any other change since the Restated
Closing Date, would not in the aggregate involve Property with a
book value or fair market value, whichever is higher, in excess of
$200,000."
f. Subsection (n) of Section 6.6 of the Loan Agreement is
amended to add the word "Additional" to the beginning thereof.
g. Subsection (e) of Section 9.1 of the Loan Agreement is
amended to delete the words "or has taken or is taking such other actions as
might materially adversely affect the Collateral," in the 25th through 27th
lines thereof.
h. The last sentence of Section 10.9 of the Loan Agreement
is amended and restated in its entirety to read as follows:
"Any obligation or liability of Borrower to any Indemnitee under
this Section 10.9 shall survive the expiration or termination of
this Agreement and the
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repayment of all Loans and the payment and performance of all other
Obligations owed to Bank."
i. Subsection (a) of Section 10.10 of the Loan Agreement
is amended to delete the words "shall not be secured by the Collateral
Documents, and" in the 37th and 38th lines thereof.
j. Subsection (c) of Section 10.11 of the Loan Agreement
is amended to delete the words "any Collateral held by Bank" in the 13th
line thereof.
k. Section 10.13 is amended to delete clause (e) thereof.
Section 10.13 of the Loan Agreement is further amended to insert the word
"and" immediately before clause (d) thereof and to delete the word "and"
immediately following clause (d) thereof.
l. Section 10.16 of the Loan Agreement is amended in its
entirety to read as follows:
"10.16 Governing Law. Except to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and
enforced in accordance with, the local Laws of California."
2. ADDITIONAL AMENDMENTS TO LOAN AGREEMENT.
2.1 The Loan Agreement is further amended as follows:
a. The definition of the term "IBOR Rate Spread" is
amended in its entirety to read as follows:
""IBOR Rate Spread" means, with respect to any Revolving Loan,
1.50% for the period from the Restated Closing Date though August
31, 1996, and at all times thereafter, the IBOR Rate Spread shall
be equal to the percentage set forth below opposite Borrower's
Leverage Ratio as of the last day of the fiscal quarter most
recently ended for the related Spread Period:
Percentage Leverage Ratio
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1.00% Less than 1.05 to 1:00
1.25% Equal to or greater than 1.05 to 1:00
but less than 1.20 to 1.00
1.50% Equal to or greater than 1.20 to 1.00 but less than 1.51 to 1.00
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1.75% Equal to or greater than 1.51 to 1.00
but less than or equal to 1.61 to 1.00
b. The definition of the term "Reference Rate Spread" is
amended in its entirety to read as follows:
""Reference Rate Spread" means, with respect to any
Revolving Loan, minus .25%."
c. Section 3.2(b) of the Loan Agreement is deleted in its
entirety and left intentionally blank.
d. Subsection (a) of Section 3.3 of the Loan Agreement is
amended in its entirety to read as follows:
"(a) In the period from the Restated Closing Date through
September 30, 1996, Borrower shall pay to Bank a commitment
fee equal to .25% per annum times the average daily
difference between the Line A Commitment and the Total Line
A Outstandings. At all times after September 30, 1996
through the Revolver Termination Date, the Borrower shall
pay to Bank a commitment fee equal to the "specified
percentage" (as defined below) per annum times the average
daily difference between the Line A Commitment and the
Total Line A Outstandings. As used in the preceding
sentence, "specified percentage" shall be equal to (i)
.125% as long as the Total Line A Outstandings are less
than or equal to $10,000,000 as of the last day of the
fiscal quarter for which the commitment fee is due, and
(ii) .20% as long as the Total Line A Outstandings are
greater than $10,000,000 as of the last day of the fiscal
quarter for which the commitment fee is due. Such
commitment fee shall be payable quarterly in arrears within
5 Banking Days after the end of each calendar quarter,
commencing with the quarter ending June 30, 1996. Bank
shall use its best efforts to notify Borrower of the amount
of the commitment fee so payable prior to each fee payment
date, but failure of Bank to do so shall not excuse payment
of such fee when payable.
e. Section 6.14 of the Loan Agreement is deleted in its
entirety and left intentionally blank.
3. REPRESENTATIONS AND WARRANTIES.
Borrower makes the following representations and warranties to Bank
as of the date hereof, which representations and warranties shall survive the
execution, termination or expiration of this Second Amendment and shall
continue in full force and effect until the full
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and final satisfaction and discharge of all Obligations of Borrower to Bank
under the Loan Agreement and the other Loan Documents:
3.1 Reaffirmation of Prior Representations and
Warranties. Borrower hereby reaffirms and restates as of the date hereof all
of the representations and warranties made by Borrower in the Loan Agreement
and the other Loan Documents, except to the extent such representations and
warranties specifically relate to an earlier date.
3.2 No Default. No Default or Event of Default,
breach or failure of condition has occurred and is continuing under any of the
Loan Documents.
3.3 Due Execution. The execution, delivery and
performance of this Second Amendment and any instruments, documents or
agreements executed in connection herewith (collectively, the "Second Amendment
Documents") are within the powers of Borrower and its Subsidiaries that are a
party thereto, have been duly authorized by all necessary action, and do not
contravene any law or the certificate of incorporation or bylaws of Borrower or
any such Subsidiary, result in a breach of, or constitute a default under, any
contractual restriction, indenture, trust agreement or other instrument or
agreement binding upon Borrower or any such Subsidiary.
3.4 No Further Consent. The execution, delivery and
performance of this Second Amendment and each of the other Second Amendment
Documents do not require any consent or approval not previously obtained of any
stockholder, beneficiary or creditor of Borrower or any of its Subsidiaries.
3.5 Binding Agreement. This Second Amendment and each
of the other Second Amendment Documents constitute the legal, valid and binding
obligation of Borrower or its Subsidiaries as are party thereto and are
enforceable against Borrower and any such Subsidiary in accordance with their
terms, except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws or equitable principles relating to
or limiting creditors' rights generally.
4. CONDITIONS PRECEDENT.
The effectiveness of this Second Amendment is subject to the
satisfaction of each of the following conditions precedent:
4.1 Documentation. Borrower shall have delivered or
caused to be delivered to Bank, at Borrower's sole cost and expense, the
following, each of which shall be in form and substance satisfactory to Bank:
a. two counterpart executed originals of this Second
Amendment;
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b. an original executed Consent and Reaffirmation of
Guarantors; and
c. evidence that the execution, delivery and
performance by the Borrower (and any guarantor) of this Second Amendment and
any instrument or agreement required under this Second Amendment have been
duly authorized.
4.2 No Defaults. All of Borrower's representations
and warranties contained herein shall be true and correct on and as of the date
of execution hereof and no Default or Event of Default shall have occurred and
be continuing under any of the Loan Documents, as modified hereby.
4.3 No Adverse Change. There shall have occurred no
material adverse change in the condition of the Borrower or its Subsidiaries
(financial or otherwise).
5. MISCELLANEOUS.
5.1 Costs and Expenses. Borrower agrees to pay all
costs, expenses, attorneys' fees, search fees, filing and recordation fees and
all other charges and expenses incurred by the Bank in connection with (1) the
negotiation, preparation, delivery and execution of this Second Amendment and
the Second Amendment Documents, including without limitation, the Bank's (i)
attorneys' fees and costs (including allocated costs of in-house counsel) and
(ii) out-of-pocket filing fees and recording charges, and (2) carrying out the
terms of this Second Amendment and the Second Amendment Documents, whether
incurred before or after the effective date hereof (including those associated
with the release of Bank's security interest in the Collateral).
5.2 Effect of Amendment. Except as provided in this
Second Amendment, all of the terms and conditions of the Loan Agreement shall
remain in full force and effect.
5.3 Counterparts. This Second Amendment may be
executed in counterparts and any party may execute any counterpart, each of
which shall be deemed to be an original and all of which, taken together, shall
be deemed to be one and the same document. The execution hereby by any party
shall not become effective until this Second Amendment is executed by all
parties hereto.
5.4 Prior Agreements. This Second Amendment contains
the entire agreement between Bank and Borrower with respect to the subject
matters hereof, and all
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prior negotiations, understandings and agreements with respect thereto are
superseded by this Second Amendment.
This Second Amendment is executed as of the date stated at the
beginning of this Second Amendment.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By ___________________________________
___________________________________
[Printed Name and Title]
XXXXXXXX INCORPORATED
By ___________________________________
___________________________________
[Printed Name and Title]
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