AMENDED AND RESTATED
DEFERRAL AND WAIVER AGREEMENT
THIS AMENDED AND RESTATED DEFERRAL AND WAIVER AGREEMENT (this
"AGREEMENT") is made and entered into this 31ST day of March, 2001
("EFFECTIVE DATE"), by and between BANK ONE, COLORADO, N.A., a national
banking association ("LENDER") and VARI-L COMPANY, INC., a Colorado
corporation (the "BORROWER"). Capitalized terms used in this Agreement
and not defined herein shall have the meaning set forth in the Loan
Documents.
RECITALS
A. On March 24, 2000, the Lender and Borrower entered into a
Revolving Loan Agreement ("LOAN AGREEMENT"), Revolving Note, General
Security Agreement and other documents executed by or on behalf of the
Borrower to the Lender in connection with the Revolving Loan
(collectively, the "LOAN DOCUMENTS"). Pursuant to the terms of the Loan
Agreement, Lender agreed to make Revolving Advances of the Revolving Loan
to the Borrower.
B. Borrower hereby acknowledges that as of the date hereof, it is
and continues to be in default under the Loan Documents and is unable to
cure certain defaults.
C. Borrower and Lender entered into (i) a Deferral and Waiver
Agreement dated as of September 28, 2000, (ii) thereafter a Deferral and
Waiver Agreement dated as of December 15, 2000, which further extended the
Deferral Period; and Borrower has requested that Lender enter into this
Amended and Restated Deferral and Waiver Agreement in order to give the
Borrower further time to undertake diligent efforts to develop and
implement a business plan to resolve certain issues.
D. Lender is willing to enter into this Agreement, but only upon
the terms and conditions set forth herein.
E. As contemplated in PARAGRAPH 17 of the Deferral and Waiver
Agreement dated September 28, 2000, Lender engaged an appraiser to value
the Borrower's equipment. The appraiser completed its appraisal of the
equipment's value, resulting in a significant reduction in the calculation
of the Borrower's Borrowing Base to $8,800,000; subsequently there has
been another reduction in the calculation of the Borrower's Borrowing
Base, as more particularly set forth in SECTION 6 below. In order to cure
the shortfall in the Borrowing Base, Borrower has agreed to make an
additional principal reduction payment as more particularly set forth in
PARAGRAPH 5 below.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are
hereby mutually acknowledged, the parties do hereby agree as follows:
1. AFFIRMATION OF RECITALS. The Recitals set forth above are true
and correct and are incorporated herein by this reference.
2. ACKNOWLEDGMENT OF DEFAULT. Borrower acknowledges that it is in
default of certain loan covenants, representations, obligations and
warranties under the Loan Documents, including, but not limited to the
following: Litigation (SECTION 5.5 of the Loan Agreement); Full
Disclosure (SECTION 5.10 of the Loan Agreement); Financial Condition
(SECTION 5.13 of the Loan Agreement); Financial Statements (SECTION 6.2 of
the Loan Agreement); Notices (Section 6.8 of the Loan Agreement); and
Financial Covenants (SECTION 6.14 of the Loan Agreement) (collectively the
"EXISTING EVENTS OF DEFAULT").
3. LENDER'S FORBEARANCE. Provided that Borrower is not in default
under the terms of this Agreement, Lender agrees: (a) not to declare any
further Events of Default under the Loan Documents; (b) not to accelerate
the amounts due under the Loan Documents; and, (c) to forbear, defer and
otherwise refrain from exercising its other rights and remedies under the
Loan Documents for the period from the Effective Date through June 30,
2001 (the "DEFERRAL PERIOD"). Principal payments together with accrued
interest (as calculated pursuant to PARAGRAPH 4 below) plus a fee of
$16,802.33 shall be due and payable to Lender on the Effective Date.
4. INTEREST RATE ON REVOLVING LOAN. Interest on the unpaid
principal due with respect to the Revolving Loan shall continue to accrue
and be payable at the rate of the Prime Rate (as defined in the Loan
Agreement) plus two percent (2%) to move with Prime ("TMWP") payable at
times determined under the Loan Documents. Upon the occurrence of any
Event of Default of this Agreement, in the Lender's sole discretion and
without waiving any of its other rights and remedies, the amount due on
the Revolving Loan shall bear interest at the Default Rate of Prime plus
five percent (5%). Borrower agrees that interest shall no longer be
applied at the LIBOR or Adjusted LIBOR Rate.
5. PRINCIPAL REDUCTION PAYMENT. Notwithstanding any other
provision of the Loan Documents to the contrary, Borrower agrees, as part
of this Agreement and in consideration for Lender's forbearance, to pay to
Lender, as a principal reduction payment under the Revolving Loan, an
amount equal to the sum necessary to reduce the outstanding principal
balance of the Revolving Loan to $6,720,931.00, in cash, certified or
cashiers check, other current funds or wire transfer funds on or before
the Effective Date. Provided there are no Events of Default and subject
to PARAGRAPH 6 below, no other principal payment shall be due during the
Deferral Period.
6. BORROWING BASE. (A) During the Deferral Period, the Borrower shall
establish and maintain its Borrowing Base at a value of no less than
$6,720,931.00 as calculated based on the following criteria:
a. raw materials 30%
b. work in progress 0%
c. finished goods 60%
d. accounts receivable (aged 75%
less than 90 days)
e. equipment (1)
Equipment acquired prior to November
1, 2000 shall be valued at the Forced
Liquidation Value ("FLV") based on
the equipment appraisal determined by
BL Enterprises dated November 1,
2000; (2) equipment acquired
subsequent to November 1, 2000 shall
be valued at 30% of Borrower's
purchase price if the equipment is
used or pre-owned; and, (3) equipment
acquired subsequent to November 1,
2000 shall be valued at 60% of
Borrower's purchase price, if the
equipment is new.
(B) Before any additional equipment may be added to the Borrowing Base,
Borrower shall provide Lender with a copy of the paid invoice for any new
or used equipment purchased after November 1, 2000. For purposes of
determining the Borrowing Base: (a) raw materials and finished goods
shall be valued using the standard costs employed by Borrower in its books
and records; and (b) accounts receivable shall be valued at the amount set
forth in the Borrower's books and records, net of reserves and credits.
Fixed assets or equipment financed by a person or entity other than Lender
shall be excluded from the Borrowing Base.
(C) The Borrower shall calculate its Borrowing Base bi-monthly as of the
15th and the last day of each month (each a "DETERMINATION DATE"), the
results of which Borrower shall provide to Lender within ten (10) business
days thereafter. If any such bi-monthly report provided to Lender in
accordance with this PARAGRAPH 6 reflects that the Borrowing Base (as
determined by the foregoing criteria) is less than $6,720,931.00, Borrower
shall immediately deposit with Lender an amount equal to the shortfall
between the Borrowing Base reflected in such most recent bi-monthly report
(the "DEFICIENT BORROWING BASE AMOUNT") and $6,720,931.00 (each a
"SHORTFALL PAYMENT"). With the exception of a Shortfall Payment that may
result from the June 30, 2001 determination of the Borrowing Base,
Borrower shall deposit any other Shortfall Payments with Lender, which
Shortfall Payments shall be held by Lender in a Lender-controlled
disbursement account (the "DISBURSEMENT ACCOUNT") until the next
Determination Date (each a "SHORTFALL DEPOSIT"). The failure of Borrower
to timely pay any Shortfall Payment to Lender shall constitute an Event of
Default hereunder.
If on the next Determination Date following the date of a Shortfall
Deposit:
(A) the Borrowing Base is EQUAL TO OR GREATER THAN $6,720,931.00, the
previous Shortfall Deposit shall be released to the Borrower, or
(B) the Borrowing Base is LESS THAN $6,720,931.00, but greater than the
previous Deficient Borrowing Base Amount, Lender shall maintain in the
Disbursement Account and amount equal to the shortfall between
$6,720,931.00 and the Borrowing Base reflected in the most recent bi-
monthly report, and shall release any portion of the Shortfall Deposit in
excess of such amount to Borrower. FOR EXAMPLE, if the previous Deficient
Borrowing Base Amount was $6,400,000 and the Shortfall Deposit made was
$320,931.00, and on the next Determination Date the new Deficient
Borrowing Base Amount is $6,500,000, the Lender shall maintain $220,931.00
on deposit in the Disbursement Account, and shall release $100,000 of the
previous Shortfall Deposit to Borrower; or
(C) the Borrowing Base is LESS THAN the previous Deficient Borrowing Base
Amount, Borrower shall immediately make a Shortfall Deposit with Lender in
an amount equal to (i) the shortfall between $6,720,931.00 and the
Borrowing Base reflected in the most recent bi-monthly report, LESS (ii)
the amount of all Shortfall Deposits on deposit in the Disbursement
Account.
It is the intent of the parties hereto, that during the Deferral Period,
Borrower make Shortfall Deposits, as needed, so that Lender always has an
amount equal to any shortfall between $6,720,931.00 and the most recent bi-
monthly calculation of the Borrowing Base on deposit in the Disbursement
Account. Borrower and Lender agree that any amounts on deposit in the
Disbursement Account as of June 30, 2001 shall be released to Lender for
application by Lender in accordance with the terms of the Loan Documents.
7. RESTRICTION ON REVOLVING LOAN. Notwithstanding any other
provision of the Loan Documents to the contrary and in consideration of
Lender's forbearance, Borrower agrees that the amount available to
Borrower under the Revolving Loan is $6,720,931.00 and upon any principal
reduction payment by Borrower of such amount, Borrower shall not have the
ability to reborrow any further amounts otherwise available under the
Revolving Loan.
8. NO REVOLVING ADVANCE. Notwithstanding any other provision of
the Loan Documents to the contrary, Borrower acknowledges that until
further agreement by the Lender, the Lender shall have no obligation to
make any additional Revolving Advance under the Revolving Loan.
9. COVENANT NOT TO LIEN OR ENCUMBER. Borrower shall not permit the
Collateral to be encumbered by any security interest except for the
benefit of the Lender; provided, however, that subject to the Lender's
approval, Borrower may grant liens, security interests, leases or other
encumbrances solely on equipment it acquires after the Effective Date.
Lender's approval shall not be unreasonably withheld.
10. SUCCESSORS AND ASSIGNS. The parties agree that this Agreement
and the Revolving Note shall be binding upon, and inure to the benefit of
the parties hereto and their respective successors, heirs, administrators
and assigns; except that the Borrower may not transfer or assign any of
its rights or obligations hereunder without the Lender's prior written
consent.
11. WAIVER OF EVENTS OF DEFAULT. Provided that the Borrower is not
in default hereunder, Lender agrees, only during the Deferral Period, to
waive the Existing Events of Default under the Loan Documents. Subsequent
to the Deferral Period, Lender may exercise any right, remedy, power or
privilege available under the Loan Documents or under this Agreement.
12. NO DEFENSES, WAIVERS. As of the date of this Agreement, the
Borrower acknowledges that it has no defense, offset, or counterclaims to
any of Borrower's obligations under the Loan Documents. To the extent
that any such defenses, claims or offsets exist as of the date hereof,
they are hereby waived and released by Borrower in consideration of
Lender's execution of this Agreement. Borrower has duly authorized,
executed and delivered this Agreement to Lender, and the Borrower
acknowledges that the Loan Documents are valid and enforceable in
accordance with their terms against the Borrower.
13. EVENTS OF DEFAULT. The occurrence of any one or more of the
following shall constitute an Event of Default under this Agreement:
(a) a materially false or misleading representation or warranty
contained in this Agreement, or the existence of a misrepresentation of
fact or fraud contained in any document or information submitted or
communicated to Lender on or after August 8, 2000, in support of this
Agreement;
(b) material breach or violation of any terms, covenant or
condition contained in this Agreement; and
(c) any other Event of Default under any of the Loan Documents
subsequent to the Effective Date other than any of the Existing Events of
Default or other than an act or omission that would again become an Event
of Default solely by the passage of time.
14. TERMINATION; REMEDIES. Immediately following the occurrence of
any default under this Agreement, Lender may, at its option, (a) terminate
its obligations to waive the defaults set forth in paragraph 2 and
terminate its obligations to defer payments as contained herein without
notice or demand to the Borrower and (b) pursue any other remedies
available to it under the Loan Documents or otherwise. If not sooner
terminated, Lender's obligation to waive the defaults set forth in
paragraph 2 and defer payments as set forth herein shall terminate
automatically and without notice to or action by Borrower on June 30,
2001.
15. NO WAIVER OF REMEDIES. Lender expressly reserves any and all
rights and remedies available to it under this Agreement and the Loan
Documents, at law or in equity in the event the Borrower defaults under
this Agreement. No failure to exercise, or delay by Lender in exercising,
any right, power or privilege hereunder shall preclude any other or
further exercise thereof, or the exercise of any other right, power or
privilege. The rights and remedies provided in this Agreement and the
Loan Documents are cumulative and not exclusive of each other or of any
right or remedy provided by law or in equity. No notice to or demand upon
the Borrower in any instance shall, in itself, entitle the Borrower to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the right of Lender to any other or further action
in any circumstances without notice or demand.
16. INSPECTION OF PROPERTY, BOOKS AND RECORDS. In accordance with
Lender's right of inspection set forth in SECTION 6.7 of the Loan
Agreement, Lender's authorized officers, employees and agents shall have
the specific right to inspect (and make copies of or abstracts therefrom)
the accounts receivable, at the expense of the Borrower and at any
reasonable time and as often as the Lender may reasonably request.
17. APPRAISAL OF EQUIPMENT. Lender's authorized officers, employees
and agents shall have the right to obtain an appraisal of any equipment of
Borrower, at Borrower's expense, and to inspect Borrower's equipment at
any reasonable time and as often as Lender may reasonably request. Lender
agrees to provide Borrower with a copy of third-party appraisals Lender
obtains during the Deferral Period.
18. REPORTING. Borrower shall promptly apprise and inform Lender of
all significant pleadings and Court Orders concerning any lawsuits or
governmental proceedings in which Borrower is a party, all decisions of
the Security Exchange Commission and NASDAQ that concern Borrower, all
actions and lawsuits filed with any Court or governmental agency
subsequent to the Effective Date and all significant developments that
concern Borrower.
19. EXPENSES; ATTORNEYS' FEES. In addition to all other amounts
that are now due or may hereafter become due to Lender under the Loan
Documents or this Agreement, the Borrower shall reimburse Lender for all
amounts reasonably incurred by or on behalf of Lender for attorneys' fees,
recording expenses, title insurance fees, UCC searches, and all other
reasonable expenses incurred by or on behalf of Lender by reason of the
matters specified herein and for the preparation of this Agreement and all
other documents necessary and required to effectuate the provisions hereof
including, without limitation, all reasonable costs and expenses with
respect to the Borrower's compliance with the terms and conditions hereof
and Lender's enforcement thereof. Borrower shall reimburse Lender for all
outstanding attorneys' fees, costs and expenses within 15 days notice of
such attorneys' fees, costs and expenses. In the event any dispute shall
arise concerning the subject matter of this Agreement, Lender shall be
entitled to recover from the Borrower its reasonable attorneys' fees and
costs incurred in the enforcement of any of the provisions set forth
herein. The rights and remedies of Lender contained in this paragraph
shall be in addition to, and not in lieu of, the rights and remedies
contained in the Loan Documents and as provided by law.
20. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Colorado.
21. DISPUTE RESOLUTION. SECTION 10.11 Waiver of Right to Trial by
Jury, SECTION 10.15 Submission to Jurisdiction/Service of Process and
SECTION 10.16 Limitation of Liability of the Loan Agreement specifically
apply to this Agreement and are incorporated herein as if fully set forth.
SECTION 10.12 Arbitration of the Loan Agreement is not applicable to this
Agreement. SECTION 10.12 Arbitration of the Loan Agreement is not
applicable to this Agreement.
22. CONSTRUCTION. This Agreement shall not be construed more
strictly against Lender merely by virtue of the fact that the same has
been prepared by Lender or its counsel, it being recognized that the
Borrower and Lender have contributed substantially and materially to the
preparation of this Agreement, and the Borrower and Lender each
acknowledge and waive any claim contesting the existence and the adequacy
of the consideration given by any of the other parties hereto in entering
into this Agreement.
23. ENTIRE AGREEMENT AND RATIFICATION. Borrower and Lender each
acknowledge that there are no other agreements or representations, either
oral or written, express or implied, not embodied in this Agreement and
the Loan Documents, which, together, represent a complete integration of
all prior and contemporaneous agreements and understandings of the
Borrower and Lender, and subject to the modifications herein, the
provisions of the Loan Documents are hereby ratified and confirmed.
24. CONSENT TO AGREEMENT. Borrower acknowledges that it has
thoroughly read and reviewed the terms and provisions of this Agreement
and is familiar with the same, that the terms and provisions contained
herein are clearly understood by it and have been fully and
unconditionally consented to by it and that the Borrower has had the full
benefit and advice of counsel of its own selection, or the opportunity to
obtain the benefit and advice of counsel of its own selection, in regard
to understanding the terms, meaning and effect of this Agreement and that
this Agreement has been entered into by the Borrower freely, voluntarily,
with full knowledge, and without duress, and that in executing this
Agreement, the Borrower is relying on no other representations either
written or oral, express or implied, made to the Borrower by any other
party hereto, and that the consideration received by the Borrower
hereunder has been actual and adequate.
25. RELEASE. As additional consideration for Lender entering into
this Agreement, the Borrower hereby fully and unconditionally releases and
forever discharges Lender, its agents, servants, employees, directors,
officers, attorneys, branches, affiliates, subsidiaries, successors and
assigns and all persons, firms, corporations, and organizations acting in
its behalf of and from all damage, loss, claims, demands, liabilities,
obligations, actions and causes of action whatsoever which the Borrower
may now have or claim to have against Lender as of the date of this
Agreement, whether presently known or unknown, and of every nature and
extent whatsoever on account of or in any way affecting, concerning,
arising out of or founded upon the Loan Documents including, but not
limited to, all such loss or damage of any kind heretofore sustained, or
that may arise as a consequence of the dealings between the parties up to
and including the date of this Agreement.
26. COUNTERPARTS. It is understood and agreed that this Agreement
may be executed in several counterparts, each of which shall, for all
purposes, be deemed an original and all of such counterparts, taken
together, shall constitute one and the same Agreement, even though all of
the parties hereto may not have executed the same counterpart of this
Agreement.
27. MISCELLANEOUS. This Agreement is made for the sole protection
of Lender and the Borrower and their respective successors and assigns.
No other person shall have any right whatsoever hereunder. Notices to
parties hereunder may be given to them at the addresses and in the manner
provided in the Loan Documents. Time shall be of the strictest essence in
the performance of each and every one of the Borrower's obligations
hereunder. If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions shall remain in effect without
impairment.
IN WITNESS WHEREOF, this Agreement has been executed by Borrower and
Lender in manner and form sufficient to bind them, as of the day and year
first above written.
BANK ONE, COLORADO, N.A.,
a national banking association
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: First Vice President
VARI-L COMPANY, INC.,
a Colorado corporation
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Vice President-Finance and
Chief Financial Officer
