EXHIBIT 10.23
WAIVER AND SEVENTH AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS WAIVER AND SEVENTH AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN
AGREEMENT AND RELATED PROMISSORY NOTES (this "Amendment") is executed as of
, 2002, by and between AMX CORPORATION, a Texas corporation,
formerly known as PANJA INC. ("Borrower") and BANK ONE, NA, successor by merger
to BANK ONE, TEXAS, N.A., a national banking association ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender entered into that certain Fourth Amended and
Restated Loan Agreement, dated September 1, 2000, pursuant to which Lender
agreed to make available to Borrower the Borrowing Base Line of Credit (as
therein defined) and the Advance/Term Facility (as therein defined)(as
heretofore or hereafter amended, the "Loan Agreement")(each capitalized term
used herein, but not otherwise defined shall have the same meaning given to it
in the Loan Agreement); and
WHEREAS, pursuant to the Loan Agreement, Borrower, Lender and Banc One
International Corporation executed that certain Exim Agreement (as defined in
the Loan Agreement) dated the date of the Loan Agreement, pursuant to which
Lender agreed to make available to Borrower a working capital loan for export
transactions in the amount of $4,000,000.00 and which was subsequently increased
to $4,500,000 in conjunction with the Fourth Amendment (the "Exim Line of
Credit") to be guaranteed by Exim Bank and included as a portion of the
Borrowing Base Line of Credit; and
WHEREAS, in connection with the Loan Agreement, Borrower executed that
certain Renewal Promissory Note (the "Borrowing Base Note") dated the date of
the Loan Agreement in the stated principal amount of $10,000,000; and
WHEREAS, in connection with the Exim Agreement, Borrower executed that
certain Promissory Note (the "Exim Note") dated the date of the Exim Agreement
in the stated principal amount of $4,000,000, which was subsequently increased
to $4,500,000 in conjunction with the Fourth Amendment; and
WHEREAS, Borrower and Lender entered into that certain Amendment to Fourth
Amended and Restated Loan Agreement (the "First Amendment") dated as of
January 5, 2001, pursuant to which Lender agreed to make available to Borrower
the 2001 Line of Credit (as therein defined); and
WHEREAS, in connection with the First Amendment, Borrower executed that
certain Promissory Note (the "Term Note") dated the date of the First Amendment
in the stated principal amount of $2,000,000 (the Borrowing Base Note, the Exim
Note and the Term Note shall be collectively referred to herein as the "Notes");
and
WHEREAS, Borrower and Lender entered into that certain Second Amendment to
Fourth Amended and Restated Loan Agreement (the "Second Amendment") dated as of
March 31, 2001, pursuant to which Lender agreed to modify certain covenants
contained in the Loan Agreement; and
WHEREAS Borrower and Lender entered into that certain Third Amendment to
Fourth Amended and Restated Loan Agreement (the "Third Amendment") dated as of
September 14, 2001, pursuant to which Lender consented to an extension of the
Maturity Dates of the Borrowing Base Note and the Exim Note to September 14,
2001; and
WHEREAS Borrower and Lender entered into that certain Fourth Amendment to
Fourth Amended and Restated Loan Agreement (the "Fourth Amendment") dated as of
September 14, 2001, pursuant to which (i) the Borrowing Base was modified, and
(ii) certain financial covenants were modified; and
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WHEREAS Borrower and Lender entered into that certain Fifth Amendment to
Fourth Amended and Restated Loan Agreement (the "Fifth Amendment") dated as of
November 14, 2001, pursuant to which (i) the Borrowing Base was modified, and
(ii) certain financial covenants were modified; and
WHEREAS Borrower and Lender entered into that certain Sixth Amendment to
Fourth Amended and Restated Loan Agreement (the "Sixth Amendment") dated as of
February 13, 2002, pursuant to which (i) the Borrowing Base was modified, and
(ii) certain financial covenants were modified; and
WHEREAS, Borrower has requested that, among other things, Lender modify
certain covenants and waive Borrower's noncompliance with certain covenants
contained in the Loan Agreement; and
WHEREAS, subject to the terms and conditions herein contained, Lender is
willing to agree to such requests.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower and
Lender hereby covenant and agree as follows:
ARTICLE I: AMENDMENTS
Section 1.1. Modification of Financial Covenants. As of the date of this
Amendment, the following financial covenants in Section 9 of the Loan Agreement
shall be amended as follows:
(a) Section 9(a) of the Loan Agreement is hereby deleted.
(b) Section 9(b) of the Loan Agreement is hereby amended and restated as
follows:
(b) Tangible Net Worth. Consolidated Borrower will maintain, at all
times, its Tangible Net Worth at no less than $13,400,000, which
amount shall be tested at the end of each calendar month.
(c) Section 9(c) of the Loan Agreement is hereby deleted.
(d) Section 9 is hereby amended to insert the following subsection (e):
(e) Minimum Consolidated EBITDA. Consolidated Borrower will at all
times maintain consolidated EBITDA (excluding tax refunds), determined
on the last day of each calendar month for the period from January 1,
2002 through such month end, of not less than the amounts set forth
below opposite such month end:
------------------------------ --------------------------
Month End Consolidated EBITDA
(in 000's)
------------------------------ --------------------------
May, 2002 1,335
------------------------------ --------------------------
June, 2002 1,475
------------------------------ --------------------------
July, 2002 1,720
------------------------------ --------------------------
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Section 1.2. Waiver. Subject to the terms and conditions of this Amendment,
Lender hereby waives compliance by Borrower with the terms of Sections 9(a)
through 9(c) of the Loan Agreement for the fiscal quarter ended on March 31,
2002.
ARTICLE II: CONDITIONS PRECEDENT
Section 2.1. Closing. The closing (the "Closing") of the transactions
contemplated by this Amendment shall occur on and as of the date that all
conditions hereto contained in Section 2.2 of this Amendment have been satisfied
(the "Amendment Closing Date").
Section 2.2. Conditions to the Closing. As conditions precedent to the
Closing, Borrower and Lender shall have:
(a) Executed and delivered this Amendment; and
(b) Paid to Lender an amendment fee in the amount of $10,000.
ARTICLE III: MISCELLANEOUS
Section 3.1. Continuing Effect. Except as modified and amended hereby, the
Loan Agreement and other Loan Documents are and shall remain in full force and
effect in accordance with their terms.
Section 3.2. Payment of Expenses. Borrower agrees to pay to Lender the
reasonable attorneys' fees and expenses of Lender's counsel and other expenses
incurred by Lender in connection with this Amendment.
Section 3.3. Binding Loan Agreement. This Amendment shall be binding upon,
and shall inure to the benefit of, the parties' respective representatives,
successors and assigns.
Section 3.4. Ratification. Except as otherwise expressly modified by this
Amendment, all terms and provisions of the Loan Agreement, the Amended Notes and
the other Loan Documents, shall remain unchanged and hereby are ratified and
confirmed and shall be and shall remain in full force and effect, enforceable in
accordance with their terms.
Section 3.5. No Defenses. Borrower by its execution of this Amendment,
hereby declares that it has no set-offs, counterclaims, defenses or other causes
of action against Lender arising out of the Loans, the modification of the
Loans, any documents mentioned herein or otherwise; and, to the extent any such
setoffs, counterclaims, defenses or other causes of action may exist, whether
known or unknown, such items are hereby waived by Borrower.
Section 3.6. Further Assurances. The parties hereto shall execute such
other documents as may be necessary or as may be required, in the opinion of
counsel to Lender, to effect the transactions contemplated hereby and to extend
the liens and/or security interests of all other collateral instruments, as
modified by this Amendment, including, without limitation, any modifications to,
or re-filing of any financing statements previously held by Lender related to
the Loans to reflect the change in Borrower's name. Borrower also agrees to
provide to Lender such other documents and instruments as Lender reasonably may
request in connection with the modification of the Loans effected hereby.
Section 3.7. Usury Savings Clause. Notwithstanding anything to the contrary
in this Amendment, the Amended Notes or any other Loan Document, or in any other
agreement entered into in connection with the Amended Notes or securing the
indebtedness evidenced by the Amended Notes, whether now existing or hereafter
arising and whether written or oral, it is agreed that the aggregate of all
interest and other charges constituting interest, or adjudicated as constituting
interest, and contracted for, chargeable or
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receivable under the Amended Notes or otherwise in connection with the Amended
Notes shall under no circumstances exceed the maximum rate of interest permitted
by applicable law. In the event the maturity of the Amended Notes is accelerated
by reason of an election by the holder thereof resulting from a default
thereunder or under any other document executed as security therefore or in
connection therewith, or by voluntary prepayment by the maker, or otherwise,
then earned interest may never include more than the maximum rate of interest
permitted by applicable law. If from any circumstance any holder of any of the
Amended Notes shall ever receive interest or any other charges constituting
interest, or adjudicated as constituting interest, the amount, if any, which
would exceed the maximum rate of interest permitted by applicable law shall be
applied to the reduction of the principal amount owing on such Amended Notes or
on account of any other principal indebtedness of the maker to the holders of
such Amended Notes, and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal thereof and such other
indebtedness, the amount of such excessive interest that exceeds the unpaid
balance of principal thereof and such other indebtedness shall be refunded to
the maker. All sums paid or agreed to be paid to the holder of the Amended Notes
for the use, forbearance or detention of the indebtedness of the maker to the
holder of such Amended Notes shall be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full for the
purpose of determining the actual rate on such indebtedness is uniform
throughout the term thereof.
The terms "maximum amount" or "maximum rate" as used in this Amendment or
the Amended Notes, or in any other agreement entered into in connection with the
Amended Notes or securing the indebtedness evidenced by the Amended Notes,
whether now existing or hereafter arising and whether written or oral, include,
as to Chapter 303 of the Texas Finance Code (and as same may be incorporated by
reference in other statutes of the State of Texas), but otherwise without
limitation, that rate based upon the "weekly ceiling"; provided, however, that
this designation shall not preclude the rate of interest contracted for, charged
or received in connection with the Loans from being governed by, or construed in
accordance with, any other state or federal law, including but not limited to,
Public Law 96-221.
Section 3.8. Non-Waiver of Events of Default. Except as specifically
provided herein, neither this Amendment nor any other document executed in
connection herewith constitutes or shall be deemed (a) a waiver of, or consent
by Lender to, any default or event of default which may exist or hereafter occur
under any of the Loan Documents, (b) a waiver by Lender of any of Borrower's
obligations under the Loan Documents, or (c) a waiver by Lender of any rights,
offsets, claims, or other causes of action that Lender may have against
Borrower.
Section 3.9. Enforceability. In the event the enforceability or validity of
any portion of this Amendment, the Loan Agreement, the Amended Notes, or any of
the other Loan Documents is challenged or questioned, such provision shall be
construed in accordance with, and shall be governed by, whichever applicable
federal or Texas law would uphold or would enforce such challenged or questioned
provision.
Section 3.10. Counterparts. This Amendment may be executed in several
counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument, it being understood and agreed that the signature pages may be
detached from one or more of such counterparts and combined with the signature
pages from any other counterpart in order that one or more fully executed
originals may be assembled.
Section 3.11. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.
Section 3.12. Entire Loan Agreement. This Amendment, together with the
other Loan Documents, contain the entire agreements between the parties relating
to the subject matter hereof and thereof. This Amendment and the other Loan
Documents may be amended, revised, waived, discharged, released or terminated
only by a written instrument or instruments, executed by the party against which
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enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER THEREIN CONTAINED AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first written above.
LENDER:
BANK ONE, NA, successor by merger to
BANK ONE, TEXAS, N.A., a national banking
association
By: /s/ B. Xxxxxxx Xxxx Xx.
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Name: B. Xxxxxxx Xxxx Xx.
-----------------------------------
Title: First Vice President
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BORROWER:
AMX CORPORATION, a Texas corporation,
formerly known as PANJA INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
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Title: VP & CFO
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