EXHIBIT 10.28
EXECUTION COPY
FIRST OMNIBUS AMENDMENT
This FIRST OMNIBUS AMENDMENT (this "Amendment"), dated as of August 9,
1996, amends:
(i) the Loan and Security Agreement, dated as of
October 9, 1995 (the "Contempo Loan Agreement"),
between Contempo Design, Inc., an Illinois
corporation ("Contempo"), and Bank of America
Illinois, formerly Continental Bank N.A. (the
"Lender");
(ii) the Loan and Security Agreement, dated as of
October 9, 1995 (the "Contempo West Loan
Agreement"), between Contempo Design West, Inc., a
Delaware corporation ("Contempo West"), and the
Lender;
(iii) the Loan and Security Agreement, dated as of October 9,
1995 (the "DEI Loan Agreement"), between Delaware Electro
Industries, a Delaware corporation ("DEI"), and the
Lender; and
(iv) the Second Amended and Restated Loan and Security
Agreement, dated as of October 9, 1995 (the
"Azimuth Loan Agreement"), between Azimuth
Corporation, a Delaware corporation ("Azimuth"),
and the Lender.
The Lender, Azimuth, Contempo, Contempo West and DEI agree
as follows:
SECTION 1. DEFINITIONS.
"Agreements" means the Azimuth Loan Agreement, the Contempo
Loan Agreement, the Contempo West Loan Agreement and the DEI Loan
Agreement.
"Amendment Effective Date" is defined in Section 3.
"Companies" means Azimuth, Contempo, Contempo West and DEI.
"New Notes" is defined in Section 3.1(iii).
SECTION 2. AMENDMENTS. Effective on (and subject to the
occurrence of) the Amendment Effective Date:
(a) The definition of "Termination Date" in Section 1.1 of
each Agreement shall be amended by substituting the date
"September 30, 1996" for the date "August 31, 1996" where it
appears in each such definition.
(b) Section 2.1 of Supplement A to each Agreement (other
than the Azimuth Loan Agreement) shall be amended by deleting the
words and figure "FIVE MILLION FOUR HUNDRED THOUSAND DOLLARS
($5,400,000)" where it appears in each such Section and inserting
in lieu thereof the words and figure "SIX MILLION FOUR HUNDRED
THOUSAND DOLLARS ($6,400,000)."
(c) Section 3.5 of Supplement A to the Azimuth Loan
Agreement shall be amended by deleting the figure "$425,000"
where it appears in such Section and inserting in lieu thereof
the figure "$1,000,000."
(d) Section 3.1 of Supplement A to each Agreement (other
than the Azimuth Loan Agreement) shall be amended and restated to
read in its entirety as follows:
3.1
(a) Interest to Maturity. (x) To the extent that the outstanding
principal balance of the Revolving Loans (other than Overdraft
Loans and Over Advances) plus the outstanding principal balance
of all "Revolving Loans" (other than "Overdraft Loans" and "Over
Advances") (as each such term is defined in each Other Loan
Agreement) is less than or equal to $5,400,000, such portion of
the outstanding principal balance of the Revolving Loans shall
bear interest to maturity at the Reference Rate in effect from
time to time plus one and one-half percent (1.5%) per annum, and
(y) To the extent that the outstanding principal balance of the
Revolving Loans (other than Overdraft Loans and Over Advances)
plus the outstanding principal balance of all "Revolving Loans"
(other than "Overdraft Loans" and "Over Advances") (as each such
term is defined in each Other Loan Agreement) exceeds $5,400,000,
such portion of the outstanding principal balance of the
Revolving Loans shall bear interest to
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maturity at the Reference Rate in effect from time to time plus
two and one-half percent (2.5%) per annum.
(b) Default Rate. If any amount of the Revolving
Loans is not paid when due, whether by acceleration or
otherwise, then
(x) To the extent that the outstanding principal balance of the
Revolving Loans (other than Overdraft Loans and Over Advances)
plus the outstanding principal balance of all "Revolving Loans"
(other than "Overdraft Loans" and "Over Advances") (as each such
term is defined in each Other Loan Agreement) is less than or
equal to $5,400,000, such portion of the outstanding principal
balance of the Revolving Loans shall bear interest until paid at
a rate per annum equal to the greater of the (a) the Reference
Rate from time to time in effect plus two and one-half percent
(2.5%) or (b) two and one-half percent (2.5%) above the Reference
Rate in effect at the time such amount became due, and
(y) To the extent that the outstanding principal balance of the
Revolving Loans (other than Overdraft Loans and Over Advances)
plus the outstanding principal balance of all "Revolving Loans"
(other than "Overdraft Loans" and "Over Advances") (as each such
term is defined in each Other Loan Agreement) exceeds $5,400,000,
such portion of the outstanding principal balance of the
Revolving Loans shall bear interest until paid at a rate per
annum equal to the greater of the (a) the Reference Rate from
time to time in effect plus two and one-half percent (2.5%) or
(b) two and one-half percent (2.5%) above the Reference Rate in
effect at the time such amount became due.
SECTION 3. EFFECTIVENESS. The amendments set forth in
Section 2 above shall become effective on such date (the
"Amendment Effective Date") when
3.1 Documents. The Lender shall have received:
(i) counterparts of this Amendment executed by
each Company;
(ii) an amendment fee of $25,000;
(iii) Revolving Notes (as defined in each of the Contempo
Loan Agreement, the Contempo West Loan Agreement
and the DEI Loan Agreement) executed by Contempo,
Contempo West and DEI
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in the forms of Exhibits A, B, and C hereto,
respectively (the "New Notes");
(iv) a copy of resolutions of the board of directors of
each Company, duly certified by the Secretary or
Assistant Secretary of each such Company,
authorizing the execution, delivery and performance
by such entity of this Amendment and, as to
Contempo, Contempo West and DEI, the New Note
executed by it;
(v) a certificate as to the incumbency of the officers
of each Company who execute this Amendment or any
New Note on behalf of such Company, with a sample
of such officer's signature, certified by the
Secretary or an Assistant Secretary of such
Company;
(vi) an opinion of Dechert, Price and ▇▇▇▇▇▇,
counsel to each Company, in form and substance
satisfactory to the Lender; and
(vii) such other documents the Lender may
reasonably request.
3.2 Other Conditions. The following further conditions precedent
shall have been satisfied:
(a) No Default. After giving effect to this Amendment, as
of the date hereof and the Effective Date no Event of Default (as
defined in any Agreement) or event which, with the giving of
notice or the passage of time, or both, would be an Event of
Default, shall have occurred and be continuing.
(b) Representations and Warranties. Except to the extent
changed by circumstances permitted by the Agreements, as amended
hereby, all of the representations and warranties of each Company
contained in each Agreement shall be true and correct on the date
hereof and the Amendment Effective Date.
(c) Certificate. The Lender shall have received a
certificate, dated the date hereof and signed by the President or
a Vice President of each Company as to the matters set forth in
paragraphs (a) and (b) of this Section 3.2.
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SECTION 4. MISCELLANEOUS.
4.1 Warranties and Absence of Defaults. In order to induce the Lender to
enter into this Amendment, each Company hereby warrants to the Lender that:
(a) Except to the extent changed by circumstances
permitted by the Agreements, as amended hereby, the warranties of
each Company contained in the Agreements are true and correct as
of the date hereof as if made on such date.
(b) No Event of Default, or event which, with the giving
of notice or the passage of time, or both, would constitute an
Event of Default, exists on the date hereof (after giving effect
hereto).
4.2 Expenses. The Companies agree, jointly and severally, to pay on
demand all costs and expenses of the Lender (including the reasonable fees,
charges and expenses of counsel for the Lender) in connection with the
preparation, negotiation, execution, delivery and administration of this
Amendment and all other instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith. In addition,
the Companies agree, jointly and severally, to pay, and save the Lender harmless
from all liability for, any documentary, stamp or other similar taxes which may
be payable in connection with the execution or delivery of this Amendment, the
borrowings under each of the Contempo Loan Agreement, the Contempo West Loan
Agreement and the DEI Loan Agreement, each as amended hereby, and the execution
and delivery of any instruments or documents provided for herein or delivered or
to be delivered hereunder or in connection herewith. All obligations provided in
this Section 4.2 shall survive any termination of this Amendment or the
Agreements as amended hereby.
4.3 Governing Law. This Amendment shall be a contract made
under and governed by the internal laws of the State of Illinois.
4.4 Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when so executed and delivered, shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
4.5 Reference to Agreements. Except as amended hereby, each Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. On and after the effectiveness of the amendments to the Agreements
accomplished hereby, each reference in each Agreement to "this Agreement,"
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"hereunder," "hereof," "herein" or words of like import, and each reference to
such Agreement in any Note (as defined in such Agreement) and in any Related
Agreements (as defined in such Agreement), or other agreements, documents or
instruments executed and delivered pursuant to such Agreement, shall be deemed a
reference to such Agreement, as amended hereby.
4.6 Guaranty Acknowledgements.
(a) Each of Contempo, Contempo West and DEI agrees that
all obligations of such entity under the Second Amended and
Restated Guaranty Agreement dated as of October 9, 1995 among the
undersigned and the Lender shall continue in full force and
effect after giving effect to the consummation of the
transactions contemplated hereby.
(b) Azimuth agrees that all obligations of the undersigned
under Section 12 of the Azimuth Loan Agreement shall continue in
full force and effect after giving effect to the consummation of
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered at
Chicago, Illinois as of the date and year first above written.
CONTEMPO DESIGN, INC.
By:____________________________
Title:______________________
CONTEMPO DESIGN WEST, INC.
By:____________________________
Title:______________________
DELAWARE ELECTRO INDUSTRIES, INC.
By:_____________________________
Title:________________________
AZIMUTH CORPORATION
By:_____________________________
Title:________________________
BANK OF AMERICA ILLINOIS
By:_____________________________
Title:________________________
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