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Exhibit 10 (NNN)
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT ("Amendment") is dated
as of August 15, 2000 and is entered into by and between Bank of America, N.A.
("Lender") and Cerprobe Corporation, Cerprobe Interconnect Solutions, Inc., OZ
Technologies, Inc. and Triple S Engineering, Inc. (collectively the
"Borrower"). All capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to them in the Agreement (as hereinafter defined).
WITNESSETH
WHEREAS, the Borrower and the Lender have entered into that certain Loan
and Security Agreement dated as of December 3, 1999, as amended and
supplemented (the "Agreement"); and
WHEREAS, the Borrower desires to amend the Agreement and the Lender is
willing to do so, subject to the terms and conditions stated herein;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Borrower and Lender hereby agree as follows:
SECTION 1. Amendment to the Agreement. The Lender and Borrower agree
that the Agreement shall be amended as follows:
A. Amendment to Section 1. The definitions of "Fixed Charge
Coverage" and "Inventory Sublimit" contained in Section 1 of the Agreement
are amended in their entirety to read as follows:
'"Fixed Charge Coverage' means, for any fiscal period, the
ratio of (a) Cash Flow for such period to (b) the sum of (i)
interest expense of Borrowers for such period plus (ii) principal
payments (excluding any repayment of the Inventory Loans) with
respect to Debt for Borrowed Money of Borrowers for such period, in
each case to the extent paid in cash.
'Inventory Sublimit' for all Borrowers $989,333.36,
decreasing on the first day of each month by an amount equal to
$243,083.33 beginning on September 1, 2000 until December 1, 2000,
on which date the Inventory Sublimit shall reduce to zero. The
Inventory Sublimit may be permanently reduced by the Borrowers in
accordance with Section 4.4 hereof."
B. Amendment to Section 4. Section 4.5(c) of the Agreement is
deleted and has no further force or effect.
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SECTION 2. Conditions. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
A. Amendment. Fully executed copies of this Amendment signed
by the Borrower shall be delivered to Lender.
B. Other Documents. Borrower shall have executed and delivered
to Lender such other documents and instruments as Lender may require.
SECTION 3. Miscellaneous.
A. Survival of Representations and Warranties. All
representations and warranties made in the Agreement or any other document
or documents relating thereto, including, without limitation, any Loan
Document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents, and
no investigation by Lender or any closing shall affect the representations
and warranties or the right of Lender to rely thereon.
B. Reference to Agreement. The Agreement, each of the Loan
Documents, and any and all other agreements, documents or instruments now
or hereafter executed and delivered pursuant to the terms hereof, or
pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference therein to the Agreement shall mean a
reference to the Agreement as amended hereby.
C. Agreement Remains in Effect. The Agreement and the Loan
Documents remain in full force and effect and the Borrower ratifies and
confirms its agreements and covenants contained therein. The Borrower
hereby confirms that, after giving effect to this Amendment, no Event of
Default or Default exists as of such date.
D. Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
E. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
F. Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Lender and Borrower and their respective
successors and assigns; provided, however, that Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior
written consent of Lender.
G. Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
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H. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
I. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN
DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT BETWEEN LENDER AND
BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN LENDER AND BORROWER.
J. Expenses. The Borrower agrees to pay the Lender a documentation fee in
the amount of $1,000, which fee may be charged to the Borrower's loan
account as a Revolving Loan.
IN WITNESS WHEREOF, the parties have executed this Amendment under seal on
the date first written above.
CERPROBE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Sr. V.P. & CEO
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: A.V.P.
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