EXHIBIT 10.33
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT
----------------------------------------------
This WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT ("Amendment") is
---------
entered into as of February 29, 2000 (the "Amendment Date"), by and between RF
--------------
MONOLITHICS, INC., a Delaware corporation ("Lessee") and BANC ONE LEASING
------
CORPORATION ("Lessor").
------
RECITALS:
A. Lessor and Lessee are party to that certain Master Lease Agreement
dated as of November 3, 1995 (including the addendum and schedules thereto and
all other amendments, supplements, or modifications thereof, the "Master Lease")
------------
pursuant to which Lessor has leased to Lessee certain equipment on the terms set
forth in the Master Lease.
B. Lessee has requested that Lessor amend certain provisions of the Master
Lease.
C. Subject to satisfaction of the conditions set forth herein, Lessor is
willing to amend the Master Lease.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1.
Definitions
-----------
Section 1.1. Definitions. Unless otherwise defined in this Amendment,
-----------
each capitalized term used in this Amendment has the meaning given to such term
in the Master Lease.
ARTICLE 2.
Waiver of Events of Default
---------------------------
Section 2.1. Waiver of Events of Default. Certain events of default have
---------------------------
occurred under the Master Lease as follows: (a) default under clause (b) of the
----------
first sentence of Section 14 of the Master Lease for failure to maintain the
----------
required financial covenants set forth in Section 18 (including as set forth in
----------
the Covenant Addendum to Master Lease) and (b) default under clause (d) of the
----------
first sentence of Section 14 resulting from the occurrence of certain events of
----------
default under that certain Letter Loan Agreement dated March 8, 1996 by and
between Lessee and Bank One, Texas, National Association. Effective as of the
Amendment Date, and subject to the conditions precedent contained herein, Lessor
hereby waives the events of default existing on the Amendment Date described in
the preceding sentence.
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 1
ARTICLE 3.
Amendments to Master Lease
--------------------------
Section 3.1. Amendment to Section 18 of the Master Lease. Effective as of
-------------------------------------------
the Amendment Date, the last sentence of Section 18 of the Master Lease is
----------
hereby deleted.
Section 3.2. Amendment to Covenant Addendum to Master Lease Agreement.
--------------------------------------------------------
Effective as of the Amendment Date, paragraph 2 of the Covenant Addendum to
-----------
Master Lease Agreement (such addendum being attached to the Master Lease and
incorporated therein) is hereby amended and restated in its entirety as follows:
2. The following is added to Section 18 of the Master Lease:
During the term of this Lease, Lessee agrees and covenants that it will at
all times maintain the following financial covenants:
(a) Quick Ratio. Lessee will, beginning as of November 30, 2000
-----------
and at all times thereafter, maintain a ratio of (1) current assets
minus inventory, to (2) current liabilities plus the unpaid principal
----- ----
balance of the Revolving Line of Credit of not less than 1.25 to 1.00.
(b) Tangible Net Worth. Lessee will, at all times, maintain its
------------------
Tangible Net Worth at not less than $29,500,000.
(c) Liabilities/Tangible Net Worth. Lessee will at all times
------------------------------
maintain a ratio of (1) total liabilities, to (2) Tangible Net Worth,
of not greater than 0.50 to 1.00.
(d) Fixed Charge Ratio. Lessee will, beginning as of November
------------------
30, 2000 and at all times thereafter, maintain a ratio of (1) net
income after taxes, plus depreciation, amortization, interest expense,
----
and long-term lease and rent expense, for the twelve (12) months
ending as of any date of determination, to (2) without duplication (A)
current maturities of long-term debt as of the date of determination,
plus (B) current maturities of capitalized leases as of the date of
----
determination, plus (C) interest expense for the preceding twelve (12)
----
months, plus (D) lease and rent expense for the preceding twelve (12)
----
months, of not less than 2.00 to 1.00.
(e) Minimum EBITDA. Lessee will not, as of the end of each of
--------------
the fiscal quarters of Lessee set forth below, permit the sum of its
net income, plus depreciation, amortization, interest expense, and
----
income taxes for the three (3) month period ending with such fiscal
quarter to be less than the amount set forth opposite the applicable
period in the table below:
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 2
Period Minimum EBITDA
--------------------------------------------------------------------
Three months ending February 29, 2000 -$666,000
--------------------------------------------------------------------
Three months ending May 31, 2000 $1,007,000
--------------------------------------------------------------------
Three months ending August 31, 2000 $2,069,000
--------------------------------------------------------------------
Unless otherwise specified, all accounting and financial terms and
covenants set forth above are to be determined according to generally
accepted accounting principles, consistently applied. As used herein, the
following terms shall mean as follows:
"Tangible Net Worth" means, as of any date, Lessee's total assets
------------------
excluding all intangible assets, less total liabilities excluding any
----
indebtedness owing by Lessee which has been subordinated by written
agreement to all indebtedness now or hereafter owing by Lessee to the Bank.
"Revolving Line of Credit" shall have the meaning specified in the
------------------------
Loan Agreement.
ARTICLE 4.
Conditions
----------
Section 4.1. Items to be Delivered By Lessee. The effectiveness of this
-------------------------------
Amendment is subject to Lessee's delivery to Lessor of each other agreement,
certificate, document, or instrument required by Lessor to be executed or
delivered by Lessee or any other party in connection with this Amendment or the
transactions contemplated in connection herewith (including, without limitation,
an amendment to the certain Letter Loan Agreement, dated as of March 8, 1996,
between Lessee and Bank One, Texas, National Association; this Amendment and all
such other agreements, certificates, documents, and instruments are referred to
collectively herein as the "Amendment Documents"), duly executed or delivered by
-------------------
the parties thereto.
Section 4.2. Other Conditions. This Amendment shall become effective upon
----------------
the following conditions precedent being performed to Lessor's satisfaction.
Lessee's failure to comply with the following conditions shall be an event of
default under the Master Lease:
(a) Continued Effect of Representations and Warranties. All
--------------------------------------------------
representations and warranties contained in the Master Lease (as amended
hereby) shall be true, correct, and complete in all material respects (as
determined by Lessor in its sole discretion) except as disclosed otherwise
to Lessor in writing and as acceptable to Lessor or representations
specifically relating to a prior date or no longer relevant due to the
occurrence of an event or circumstances specifically permitted hereunder or
by the Master Lease;
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 3
(b) Absence of Default. No event of default shall have occurred and
------------------
be continuing (after giving effect to this Amendment);
(c) Corporate Proceedings. All corporate proceedings taken in
---------------------
connection with the transactions contemplated by this Amendment and all
other agreements, documents, and instruments executed and/or delivered
pursuant hereto, and all legal matters incident thereto, shall be
satisfactory to Lessor and its legal counsel;
(d) Fees and Expenses. Payment or reimbursement to Lessor for all
-----------------
expenses, costs, and fees incurred by, or due to, Lessor in connection with
negotiating and documenting this Amendment and the other Amendment
Documents to the extent invoiced or otherwise billed by Lessor to Lessee;
(e) Additional Information. Lessee shall have received such
----------------------
additional agreements, certificates, documents, instruments, and
information as Lessee or its legal counsel may request to effect the
transactions contemplated hereby.
Section 4.3 Other Agreements. In addition to the conditions set forth in
----------------
Section 4.1 and Section 4.2 of this Amendment, Lessee agrees as follows:
----------- -----------
(a) On or before March 31, 2000, at Lessee's cost not in excess of
$12,500, Lessee will provide Lessor with an appraisal of all equipment and
other property covered by the Master Lease, such appraisal to be in form
acceptable to Lessor and performed by an appraiser acceptable to Lessor.
(b) On or before March 31, 2000, the existing balance of Lessee's
lease line of credit (currently $313,341.97) together with all accrued and
unpaid interest and other charges (if any) outstanding with Lessor will be
repaid in full, such repayment being accomplished by (A) Lessee selling the
equipment described on Exhibit B hereto (the "New Equipment") to Lessor and
--------- -------------
executing a Schedule (as defined in the Master Lease) or an amendment to an
existing Schedule between Lessee and Lessor whereby the New Equipment, with
a total cost to Lessor of $290,500, is leased to Lessee upon terms
acceptable to Lessor and (B) making payment of all remaining principal,
interest, and other charges in immediately available funds on the date of
executing such Schedule or amendment.
Lessee agrees that failure to comply with the terms of this Section 4.3 shall
-----------
constitute an event of default under the Master Lease.
ARTICLE 5.
Representations and Warranties
------------------------------
Section 5.1. Representations and Warranties. Lessee hereby represents and
------------------------------
warrants to Lessor that, as of the date of and after giving effect to this
Amendment:
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 4
(a) the execution, delivery, and performance of this Amendment and any
and all other Amendment Documents executed and/or delivered in connection
herewith have been authorized by all requisite action on the part of Lessee
and will not violate Lessee's certificate of incorporation, bylaws, or
other similar constituent documents;
(b) except as set forth in Exhibit A hereto, all representations and
---------
warranties set forth in the Master Lease and the Schedules thereto are true
and correct in all material respects as if made again on and as of such
date (except as disclosed otherwise to Lessor in writing and as acceptable
to Lessor or representations specifically relating to a prior date or no
longer relevant due to the occurrence of an event or circumstances
specifically permitted hereunder or under the Master Lease);
(c) no event of default has occurred and is continuing under the
Master Lease; and
(d) the Master Lease (as amended by this Amendment) is and remains
legal, valid, binding, and enforceable obligations of Lessee.
ARTICLE 6.
Miscellaneous
-------------
Section 6.1. The waiver described in Section 2.1 of this Amendment shall
-----------
not constitute and shall not be deemed a waiver of any other event of default
under the Master Lease, whether arising as a result of the further violation of
the provisions of the Master Lease or otherwise, or a waiver of any rights or
remedies arising as a result of such other events of default.
Section 6.2. Governing Law. THIS AMENDMENT, AND ALL DOCUMENTS AND
-------------
INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF OHIO.
Section 6.3. Agreement Remains in Effect; No Waiver. Except as expressly
--------------------------------------
provided herein, all terms and provisions of the Master Lease shall remain
unchanged and in full force and effect and are hereby ratified and confirmed.
No delay or omission by Lessor in exercising any power, right, or remedy shall
impair such power, right, or remedy or be construed as a waiver thereof or an
acquiescence therein, and no single or partial exercise of any such power,
right, or remedy shall preclude other or further exercise thereof or the
exercise of any other power, right, or remedy under the Master Lease or
otherwise.
Section 6.4. Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made in this Amendment or the Master Lease shall
survive the execution and delivery of this Amendment, and no investigation by
Lessor or any closing shall affect the representations and warranties or the
right of Lessor to rely upon them.
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 5
Section 6.5. Reference to Master Lease. Each of the Schedules to the
-------------------------
Master Lease, and any and all other agreements, documents, or instruments now or
hereafter executed and/or delivered pursuant to the terms of the Master Lease,
are hereby amended so that any reference in such agreements, documents, or
instruments to the Master Lease shall mean a reference to the Master Lease as
amended hereby.
Section 6.6. 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.
Section 6.7. Successors and Assigns. This Amendment is binding upon and
----------------------
shall inure to the benefit of Lessor and Lessee and their respective successors
in interest and assigns. Lessee may not assign any right, power, duty, or
obligation hereunder without the prior written consent of Lessor.
Section 6.8. Headings. The headings, captions, and arrangements used in
--------
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 6.9. Expenses of Lessor. Lessee agrees to pay on demand all,
------------------
third party out-of-pocket costs and expenses incurred by Lessor in connection
with the preparation, negotiation, and execution of this Amendment or any other
agreement, document, or instrument executed pursuant hereto (including, without
limitation, fees and costs of Lessor's legal counsel and fees and costs
associated with appraisals of the equipment as referenced in Section 4.3 of this
-----------
Amendment) and all costs and expenses incurred by Lessor in connection with the
enforcement or preservation of any rights under the Master Lease, as amended
hereby, including, without limitation, the costs and fees of Lessor's legal
counsel.
Section 6.10. Counterparts. This Amendment may be executed simultaneously
------------
in one or more multiple originals and on telecopy counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same agreement.
Section 6.11. Waiver of Claims and Defenses. To induce Lessor to enter
-----------------------------
into this Amendment, Lessee represents and warrants that as of the Amendment
Date there are no claims or offsets against or defenses or counterclaims to
Lessee's obligations under the Master Lease, and Lessee waives any and all such
claims, offsets, defenses, or counterclaims whether known or unknown, arising
prior to the Amendment Date. Additionally, Lessee hereby releases Lessor and
each of its respective legal representatives, successors, affiliates, parent,
subsidiaries, predecessors, assigns, shareholders, partners, trustees,
beneficiaries, administrators, heirs, former and current officers, directors,
agents, attorneys, and employees, and its respective successors, assigns, heirs,
executors, and administrators from any and all claims, actions, suits, causes of
action, accounts, judgments, agreements, promises, executions, debts, damages,
demands, rights, obligations, liabilities, and controversies now in existence
concerning or in connection with the Master Lease or this Amendment
(collectively, the "Claims") of every nature and description, in law or in
------
equity,
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 6
whether known or unknown, foreseen or unforseen, and regardless of whether
Lessee hereafter discovers any facts which may give rise to any Claim.
Section 6.12. Lease Characterization. Nothing contained in any Amendment
----------------------
Document shall constitute a change of character of the Master Lease into any
other type of transaction. Lessee hereby waives any right to assert in any
proceeding or litigation that any lease described in the Master Lease is a
conditional or disguised sale, a secured transaction covered under Article or
Section 9 of the Uniform Commercial Code, or any form of transaction other than
a true lease.
Section 6.13. Entire Agreement. This Amendment, together with the Master
----------------
Lease, as written, represents the final agreement between Lessor and Lessee and
may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements between Lessor and Lessee. There are no unwritten agreements
between Lessor and Lessee.
[Remainder of page intentionally left blank]
WAIVER AND AMENDMENT TO MASTER LEASE AGREEMENT - Page 7
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment to be
executed and delivered by their duly authorized officers effective as of the
date first written above.
LESSEE:
------
RF MONOLITHICS, INC.
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: President & CEO
----------------------------------
LESSOR:
------
BANC ONE LEASING CORPORATION
By: /s/ Xxxxxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
