EXHIBIT 4.6
LOAN AGREEMENT
AGREEMENT, dated as of October 29, 2001, between SHERBORNE &
COMPANY INCORPORATED, a Delaware corporation ("LENDER"), and AMPEX DATA SYSTEMS
CORPORATION, a Delaware corporation ("BORROWER").
Lender and Borrower desire to provide the terms upon which Loans
shall be advanced by Lender to Borrower. Accordingly, Lender and Borrower hereby
agree as follows:
SECTION 1. Loans. From time to time Lender shall, upon Borrower's
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request as set forth herein, advance funds to Borrower in the form of secured
loans on a revolving credit basis for working capital corporate purposes
("Loans") up to an aggregate amount at any one time outstanding not in excess of
$2,500,000 (subject to reduction as provided in Section 3 below). All Loans
shall be evidenced by a Promissory Note (the "Note") in substantially the form
of Annex A attached hereto. Lender agrees to record all Loans and repayments of
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Loans on the schedule(s) attached to such Note (but the failure of Lender to
make any such recordation shall not affect the obligation of Borrower hereunder
or under the Note.) The Loans shall be (i) secured by a lien and security
interest in favor of Lender in the "Collateral" described in the form of
Security Agreement (the "Security Agreement") in substantially the form of Annex
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B attached hereto, and (ii) unconditionally guaranteed by Ampex Corporation, a
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Delaware corporation ("Guarantor"), the corporate parent of Borrower, pursuant
to a Guarantee Agreement (the "Guarantee") in substantially the form of Annex C
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attached hereto. All Loans heretofore or hereafter made by Lender to Borrower
shall be governed by this Agreement. Lender shall make no Loans on or after, and
all Loans, accrued and unpaid interest thereon and all other fees and charges
due and payable hereunder, including costs and expenses for which the Borrower
is obligated, shall be due and payable on, March 31, 2002.
SECTION 2. Conditions to Loans.
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(a) As conditions precedent to the making of the initial Loan
hereunder:
(I) Borrower shall have:
(i) entered into an amendment to the Note Purchase Agreement,
dated as of November 6, 2000, pursuant to which the
Borrower issued and there are outstanding $8,919,555.56
aggregate principal amount of Senior Discount Notes (the
"Discount Notes") to the Noteholders named therein
("Noteholders"), in form and substance
satisfactory to Lender, pursuant to which
amendment the Noteholders shall have
unanimously consented and agreed to the
incurrence of the Loans and the execution,
delivery and performance of this Agreement,
the Note, the Security Agreement and the
Guarantee, and the extension of the stated
maturity date of the Discount Notes to March
31, 2002;
(ii) executed and delivered the Note and the
Security Agreement to Lender, and executed
and filed a Form UCC-1 financing statement
in the office of the Secretary of State of
the State of Delaware (and such other public
filing offices as Lender shall have
specified);
(iii) implemented a plan for repayment of
Borrower's outstanding accounts payable
indebtedness, which plan shall be in form
and substance satisfactory to Lender;
(iv) delivered to Lender a report satisfactory to
Lender listing the results of UCC lien
searches in the States of California,
Colorado, Delaware and New York;
(v) delivered to Lender certificates of public
officials evidencing the good standing of
Borrower in the State of Delaware and
Borrower's qualification to do business in
the States of California, Colorado and New
York;
(vi) [Reserved.]
(vii) delivered to Lender evidence satisfactory to
Lender that valid policies of insurance
covering the Collateral are in full force
and effect, in each case naming the Lender
as insured or loss payee, as its interests
may appear; and
(viii) executed and delivered a certificate of an
authorized officer of Borrower, dated the
date of the initial Loan, to the effects
that (x) all conditions precedent to the
making of the initial Loan hereunder have
been satisfied, (y) the representations and
warranties of Borrower set forth in Section
6 hereof are true and correct as of the date
of such Loan, and (z) that no Event of
Default (as defined below) has occurred and
is continuing; and
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(II) Guarantor shall have:
(i) executed and delivered to Lender the Guarantee; and
(ii) entered into an agreement with Lender, in form and
substance satisfactory to Lender, pursuant to which
Guarantor shall undertake (A) to issue to Lender (or
its designee), as promptly as practicable following
the effective date of the initial Loan hereunder,
1,000,000 shares of the Class A Common Stock of
Guarantor, and (B) to prepare and file with the
Securities and Exchange Commission not later than
December 31, 2001 a registration statement under the
Securities Act of 1933, as amended, covering such
shares; provided, however, that such issuance shall
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be subject to the following: (x) Lender shall have
advanced to Borrower at least $1,000,000 of Loans
hereunder; and (y) such shares shall have been
approved for listing on the American Stock Exchange.
(b) As a condition to the making of each subsequent Loan
hereunder, Borrower shall have delivered to Lender (i) a written request for
such Loan at least two (2) days prior to the requested disbursement date, and
(ii) a certificate of an authorized officer of Borrower, dated the date of such
request, to the effect that (x) since the date of the preceding borrowing
hereunder, no event has occurred, and no claim, litigation or assessment has
been instituted against Borrower or Guarantor, which is reasonably likely to
have a material adverse effect on the business, assets or financial condition of
Borrower or Guarantor; (y) the representations and warranties of Borrower set
forth in Section 6 hereof are true and correct as of the date of such request,
and (z) no Event of Default has occurred and is continuing, and no other event,
which with notice or lapse of time or both would result in an Event of Default,
has occurred and is continuing.
SECTION 3. Reduction of Commitment; Repayment of Loans. Lender's
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commitment to make Loans hereunder shall be reduced to $1,500,000 as of January
10, 2002 and to $750,000 as of February 10, 2002, and the principal amount of
all Loans outstanding hereunder on such dates in excess of such reduced Loan
commitment shall be repaid by Borrower on such dates and may not be reborrowed.
All outstanding Loans, accrued and unpaid interest thereon and all other fees
and charges due and payable hereunder, including costs and expenses for which
the Borrower is obligated, shall be repaid by Borrower on March 31, 2002.
Outstanding Loans may be prepaid by Borrower, in whole or in part, at any time
from time to time without penalty or premium. All payments or prepayments of
principal of the Loans shall be accompanied by payment in full of all accrued
interest on the principal amount so paid or prepaid.
SECTION 4. Events of Default. The entire outstanding principal
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amount of the Loans and all interest accrued thereon shall become due and
payable, at the
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option of Lender, upon the occurrence and continuance beyond any applicable
grace periods of any of the following events (each, an "Event of Default"):
(a) Borrower shall default in the performance or observance of
any obligation under this Agreement, the Note or the Security Agreement and such
default shall continue for five (5) days;
(b) any representation or warranty made by Borrower under this
Agreement, the Note or the Security Agreement, or by Guarantor under the
Guarantee, shall prove to be false, incorrect or breached by such party in any
material respect as of the date on which made;
(c) a material default by Borrower in the performance or
observance of any obligation under any other indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which Borrower is a party or
by which it or its property is bound evidencing or governing Borrower's
indebtedness for borrowed money and the expiration of the applicable grace
periods thereunder, if as a result of such default, the holder or holders
thereof, or any trustee or agent on behalf of such holders, has caused the
acceleration of such indebtedness;
(d) a material default by Guarantor in the performance or
observance of any obligation under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Guarantor is a party or by
which it or its property is bound evidencing or governing Guarantor's
indebtedness for borrowed money and the expiration of the applicable grace
periods thereunder, if as a result of such default, the holder or holders
thereof, or any trustee or agent on behalf of such holders, has caused the
acceleration of such indebtedness;
(e) a case or proceeding under the bankruptcy laws of the United
States of America now or hereafter in effect or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction now or hereafter in effect (whether at law or
in equity) shall be filed against Borrower or Guarantor or all or any part of
their respective properties and such petition or application is not dismissed
within thirty (30) days after the date of its filing or Borrower or Guarantor
shall file any answer admitting or not contesting such petition or application
or indicating its consent to, acquiescence in or approval of, any such action or
proceeding or the relief requested is granted sooner; or
(f) a case or proceeding under the bankruptcy laws of the United
States of America now or hereafter in effect or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction now or hereafter in effect (whether at law or
equity) is filed by Borrower or Guarantor or for all or any part of their
respective properties.
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SECTION 5. Interest. The aggregate principal amount of the Loans
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from time to time outstanding shall bear interest at the rate of 8% per annum
(computed on the basis of a year of 360 days and actual days elapsed). Interest
accrued on the Loans shall be paid on the last date of each calendar month
during the term hereof and on each date of repayment of the principal of the
Loans whether pursuant to Section 3 or otherwise.
SECTION 6. Representation and Warranties. Borrower hereby
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represents and warrants to Lender as follows:
(a) it is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, is duly qualified as a
foreign corporation and is in good standing in each jurisdiction as to which the
location of its assets or the nature of its business makes qualification
necessary or in which the failure to so qualify would have a material adverse
effect on its condition or operations, financial or otherwise, and has all
corporate power and authority to conduct its business and to own or hold under
lease its assets and properties, and to execute, deliver, and perform all of its
obligations under, this Agreement and the Note and any other related documents
to which it is a party;
(b) the execution, delivery and performance by it of this
Agreement, the Note and any related documents to which it is a party have been
duly authorized by all necessary corporate action, do not contravene its
charter, by-laws or any applicable laws, rules regulations, orders, writs,
judgments, injunctions, decrees, determinations or awards, and do not and will
not result in a breach of, or constitute a default under, or require any consent
(other than consents which have been duly obtained and are in effect, consents
described in Section 7(e) below, and other consents with respect to which
Borrower's failure to obtain such consents will not result in a material adverse
effect on Borrower or its business) under, any indenture or other agreement or
instrument to which it is a party or by which it or its properties may be bound
or affected;
(c) no authorization or approval by, and no notice to or filing
with, any governmental authority or regulatory body is required to be obtained
or made in connection with the execution, delivery and performance by it of this
Agreement, the Note or the Security Agreement, except as noted in Section
5(c)(ii) of the Security Agreement;
(d) this Agreement, the Note and each of the other related
documents to which it is a party constitute the legal, valid and binding
obligations of Borrower enforceable against it in accordance with its respective
terms, except as such enforceability shall be subject to bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally and to general principles of equity;
(e) there is no pending or threatened action or proceeding
affecting it before any court, governmental agency or arbitrator which may
materially adversely
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affect its ability to perform its obligations hereunder or under the Note or any
other related document to which it is a party or which purports to affect the
legality, validity or enforceability of this Agreement, the Note or such other
related document;
(f) the indebtedness represented by the Loans is not subordinated to any
other indebtedness of Borrower; and
(g) no lien or security interest of any nature whatsoever relating to any
of the Collateral is currently in effect, except as expressly permitted by the
Security Agreement.
SECTION 7. Affirmative Covenants. Until later to occur of (i) the full
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and final payment of all amounts payable to Lender under this Agreement and the
Note or (ii) March 31, 2002, the Borrower shall:
(a) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and any necessary qualification to
do business in any foreign jurisdictions;
(b) carry and maintain in full force and effect at all times with
financially sound and reputable insurers acceptable to Lender insurance against
such risks as are usually insured against by businesses engaged in the same or
similar businesses as Borrower;
(c) furnish or cause to be furnished to Lender: (i) within 30 days after
the end of each fiscal month, and within 45 days after the end of each fiscal
quarter, unaudited consolidated financial statements (including balance sheets,
statements of income and loss and statements of shareholders' equity), all in
reasonable detail, fairly presenting the financial position and the results of
operations of Borrower and its subsidiaries as of the end of and for such fiscal
period; (ii) within 90 days after the end of each fiscal year, audited
consolidated financial statements (including in each case balance sheets,
statements of income and loss, statements of cash flow and statements of
shareholders' equity), and the accompanying notes thereto, all in reasonable
detail, fairly presenting the financial position and the results of the
operations of Borrower and its subsidiaries as of the end of and for such fiscal
year; and (iii) such other financial information regarding the Collateral and
the business of Borrower and Guarantor as Lender may, from time to time,
reasonably request;
(d) notify Lender, to the extent Borrower has actual knowledge thereof, of
any Event of Default described above in Section 4(c) or 4(d), or any other event
which, with notice or the lapse of time or both, would result in such an Event
of Default; and
(e) within thirty (30) days following the execution and delivery of this
Agreement, obtain any landlords' or warehousemen's consents for the premises
located at
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000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx or for any other premises where the
Collateral located thereon has a value in excess of $100,000;
(f) as promptly as practicable following the execution and delivery of
this Agreement, deliver to Lender a favorable opinion of Borrower's counsel, in
form and substance reasonably satisfactory to Lender, as to the due
authorization, execution and delivery by Borrower of the Loan Agreement, the
Note and the Security Agreement, and by Guarantor of the Guarantee, and as to
such other legal matters incident to the making of the Loans as Lender may
reasonably request.
SECTION 8. Negative Covenants. Until the later to occur of (i) the
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full and final payment of all amounts payable to Lender under this Agreement and
the Note or (ii) March 31, 2002, the Borrower shall not, without the prior
written consent of Lender:
(a) permit any amendment to or modification of its Certificate of
Incorporation or By-Laws which would adversely affect Lender; and
(b) incur any additional indebtedness for borrowed money, or any other
liability or obligation, in any case that is secured by a lien on any of the
Collateral, other than liens expressly permitted by the Security Agreement.
SECTION 9. Indemnity and Expense.
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(a) Each of the parties hereto agrees to indemnify the other party from
and against any and all claims, losses and liabilities growing out of or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement or the Note), except claims, losses or liabilities resulting from
such indemnified party's gross negligence or willful misconduct. The obligations
of the parties hereto contained in this Section 9 shall survive the termination
of this Agreement.
(b) The Borrower will upon demand pay to the Lender the amount of any
and all expenses, including the reasonable fees and disbursements of its counsel
and of any experts and agents, which the Lender may incur in connection with (i)
the negotiation, preparation, execution and performance of this Agreement, the
Note, the Security Agreement and any other documents related hereto, (ii) the
exercise or enforcement of any of the rights of the Lender under this Agreement,
the Note or the Security Agreement; or (iii) the failure by the Borrower to
perform or observe any of the provisions hereof.
SECTION 10. Notices. All notices, requests, demands and other
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communications to a party provided for or permitted hereunder shall, unless
otherwise stated herein, be in writing and shall be sent to a party by certified
mail, postage prepaid and return receipt requested; by telex, telegram or
facsimile; by nationally recognized overnight courier service; or by hand
delivery, in each case to such party at its address set
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forth below, or at such other address as such party may designate by written
notice to the other in accordance with this provision, and shall be deemed to
have been given or made: if by certified mail, return receipt requested, five
(5) days after mailing; if by telex, telegram or facsimile, immediately upon
sending and upon confirmation of receipt; if by nationally recognized overnight
courier service with instructions to deliver the next business day, one (1)
business day after sending; and if by hand, immediately upon personal delivery.
SECTION 11. Amendments; Waivers. No amendment or waiver of any
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provision of this Agreement, nor consent to any departure by either party
herefrom, shall in any event be effective unless the same shall be in writing
and signed by such party, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 12. Successors and Assigns. This Agreement, and the terms,
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covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
SECTION 13. Severability. In case any provision of this Agreement
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shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 14. Waiver of Right to Trial by Jury. BORROWER AND LENDER
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HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT, CLAIM, DEMAND OR CAUSE OF ACTION BY THE OTHER PARTY HERETO
ARISING UNDER, IN CONNECTION WITH OR OTHERWISE RELATING TO THIS AGREEMENT, THE
NOTE, THE SECURITY AGREEMENT OR ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. BORROWER AND
LENDER HEREBY AGREE AND CONSENT THAT ANY PARTY MAY FILE AN ORIGINAL COUTERPART
OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THIS CONSENT
BY BORROWER AND LENDER TO THE WAIVER OF THEIR RESPECTIVE RIGHT TO TRIAL BY JURY.
SECTION 15. Consent to Jurisdiction.
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(a) Each of Borrower and Lender hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the Borough of
Manhattan, The City of New York, in any action or proceeding arising out of or
relating to this Agreement, and hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York State or Federal court. Each
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of Borrower and Lender hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. Each of Borrower and Lender also irrevocably consents
to the service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding by the mailing or delivery
of a copy of such process to such party at its address for notice specified
herein by certified mail, return receipt requested.
(b) Nothing contained in this Section shall affect the right
of Borrower or Lender to serve legal process in any other manner permitted by
law or to bring any action or proceeding against the other party or its property
in the courts of any other jurisdictions.
SECTION 16. Governing Law. The validity, interpretation and
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enforcement of this Agreement shall be governed by the internal laws of the
State of New York (without giving effect to principles of conflicts of law).
SECTION 17. Counterparts. This Agreement may be executed in
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any number of counterparts, all of which together shall constitute one and the
same instrument. Any of the parties hereto may execute this Agreement by
signing any such counterpart.
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Signature Page
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
LENDER:
SHERBORNE & COMPANY INCORPORATED
By /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
Address:
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000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
BORROWER:
AMPEX DATA SYSTEMS CORPORATION
By /s/Xxxxx X. XxXxxxxx
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Name: Xxxxx X. XxXxxxxx
Title: Vice President
Address:
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000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
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