Exhibit 4.5.1
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made as of the 25th day of March, 2002 to the Loan and Security Agreement dated
November 28, 2001 (the "Loan Agreement") among Numatics, Incorporated,
Micro-Filtration, Inc., Numation, Inc., Numatech, Inc., Ultra Air Products,
Inc., Microsmith, Inc., Empire Air Systems, Inc. (each a "Borrower" and
collectively "Borrowers") and LaSalle Business Credit, Inc., as Lender and
Collateral Agent. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to them in the Loan Agreement.
WHEREAS, Borrowers have requested that Lender amend the Loan Agreement in
certain respects and Lender has agreed to do so subject to the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants
herein contained, and such other consideration as the parties mutually agree,
the parties hereto agree as follows:
1. Amendment. Borrowers and Lender agree that Section 14(a) of the
Loan Agreement is amended and restated in its entirety to read as follows:
(a) Tangible Net Worth.
Borrowers shall not permit Tangible Net Worth at any time to be
less than the Minimum Tangible Net Worth; "Minimum Tangible Net Worth"
being defined for purposes of this subsection as (i) Fifteen Million
Seven Hundred Thousand and No/100 Dollars ($15,700,000.00) at all
times from November 28, 2001 through December 30, 2002, (ii) Eighteen
Million Two Hundred Thousand and No/100 Dollars ($18,200,000.00) at
all times from and including December 31, 2002 through December 30,
2003, and (iii) Twenty Million Seven Hundred Thousand and No/100
Dollars ($20,700,000.00) at all times from and including December 31,
2003 and thereafter; and "Tangible Net Worth" being defined for
purposes of this subsection as Numatics' shareholders' equity
(including retained earnings) on a consolidated basis less the book
value of all intangible assets and all "Investments", "Other Current
Assets", "Deferred Tax Assets" and "Other Assets" all as classified on
Numatics' consolidated balance sheet, including, but not limited to,
transaction costs not amortized, debt issuance costs not amortized and
product drawings, as determined solely by Lender on a consistent basis
less prepaid expenses and obligations due from officers, affiliates
and employees plus the amount of any LIFO reserve plus the amount of
any debt subordinated to the Liabilities in a manner satisfactory to
Lender (but excluding the indebtedness evidenced by the Subordinated
Redemption Note dated January 3, 2001 in the principal amount of One
Million Eighty-Nine Thousand Nine Hundred Ninety-Six and
No/100 Dollars ($1,089,996.00) issued by Numatics to Xxxxx X. Xxxxx
and, to the extent in excess of Five Hundred Thousand and No/100
Dollars ($500,000.00), indebtedness consisting of deferred
compensation owing to Xxxx Xxxxxx) plus deferred tax liabilities, all
as determined for Numatics and its Subsidiaries on a consolidated
basis under generally accepted accounting principles applied on a
basis consistent with the financial statement dated September 30, 2001
except as set forth herein and calculated without giving effect to any
unrealized non-cash foreign exchange gains and/or losses accumulating
after December 31, 2001;
2. Representations and Warranties of Borrowers. Each Borrower
represents and warrants that, as of the date hereof:
(a) Each Borrower has the right and power and is duly authorized
to enter into this Agreement and all other agreements executed in
connection herewith;
(b) No Event of Default or an event or condition which upon
notice, lapse of time or both will constitute an Event of Default has
occurred and is continuing;
(c) The execution, delivery and performance by each Borrower of
this Amendment and the other agreements to which such Borrower is a
party (i) have been duly authorized by all necessary action on its
part; (ii) do not and will not, by the lapse of time, giving of notice
or otherwise, violate the provisions of the terms of its Articles of
Certificate of Incorporation or By-Laws, or of any mortgage,
indenture, security agreement, contract, undertaking or other
agreement to which such Borrower is a party, or which purports to be
binding on such Borrower or any of its properties; (iii) do not and
will not, by lapse of time, the giving of notice or otherwise,
contravene any governmental restriction to which such Borrower or any
of its properties may be subject; and (iv) do not and will not, except
as contemplated in the Loan Agreement, result in the imposition of any
lien, charge, security interest or encumbrance upon any of such
Borrower's properties under any indenture, mortgage, deed of trust,
loan or credit agreement or other agreement or instrument to which
such Borrower is a party or which purports to be binding on such
Borrower or any of its properties;
(d) No consent, license, registration or approval of any
governmental authority, bureau or agency is required in connection
with the execution, delivery, performance, validity or enforceability
of this Amendment and the other agreements executed by any Borrower in
connection herewith;
(e) This Amendment and the other agreements executed by any
Borrower in connection herewith have been duly executed and delivered
by any Borrower and are enforceable against any Borrower in accordance
with their terms; and
(f) All information, reports and other papers and data heretofore
furnished to Lender or Collateral Agent by any Borrower in connection
with this Amendment, the Loan Agreement and Other Agreements are
accurate and correct in all material respects and complete
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insofar as may be necessary to give Lender true and accurate knowledge
of the subject matter thereof. Each Borrower has disclosed to Lender
every fact of which it is aware which would reasonably be expected to
materially and adversely affect the business, operations or financial
condition of such Borrower or the ability of such Borrower to perform
its obligations under this Amendment, the Loan Agreement or under any
of the Other Agreements. None of the information furnished to Lender
by or on behalf of any Borrower contained any material misstatement of
fact or omitted to state a material fact or any fact necessary to make
the statements contained herein or therein not materially misleading.
3. Conditions Precedent. The amendments to the Loan Agreement set
forth in this Amendment shall become effective as of the date of this
Amendment and the following conditions have been satisfied:
(a) Lender has received a copy of this Amendment executed by each
party thereto;
(b) Borrowers have paid Lender a Five Thousand and No/100 Dollar
($5,000.00) amendment fee; and
(c) Lender has received a copy of a fully executed amendment to
the ACS Purchase Agreement in form and substance satisfactory to
Lender.
4. Fees and Expenses. Borrowers agree to pay all legal fees and other
expenses, whether for in-house or outside counsel, incurred by Lender in
connection with this Agreement and the transactions contemplated hereby.
5. Foreign Pledge Agreements. Borrowers agree to execute such
documents and take such actions as are necessary to grant Lender a valid
and enforceable first priority security interest in sixty-five percent
(65%) of the equity in each of Numatics S.A. de C.V., Numatics, Ltd. and
Numatics S.R.L. by April 30, 2002.
6. Loan Agreement Remains in Force. Except as specifically amended
hereby, all of the terms and conditions of the Loan Agreement shall remain
in full force and effect and this Agreement shall not be a waiver of any
rights or remedies which Lender has provided for in the Loan Agreement and
all such terms and conditions are herewith ratified, adopted, approved and
accepted.
7. No Novation. This Amendment and all other agreements executed by
Borrowers on the date hereof are not intended to nor shall be construed to
create a novation or accord and satisfaction, and shall only be a
modification and extension of the existing Liabilities of Borrowers to
Lender.
8. Entire Agreement. This Amendment and the other documents it refers
to comprise the entire agreement relating to the subject matter they cover
and supersede any and all prior written or oral agreements among Lender and
Borrowers relating thereto.
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9. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Except as expressly provided for herein, the terms and conditions of
the Loan Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, Borrowers and Lender have caused this Amendment to be
duly executed by their proper duly authorized officers oaf the day and year
first set forth above.
LASALLE BUSINESS CREDIT, INC.
By /s/ Xxxx X. Xxxxxxx
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Its Vice President
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NUMATICS, INCORPORATED
MICRO-FILTRATION, INC.
NUMATION, INC.
NUMATECH, INC.
ULTRA AIR PRODUCTS, INC.
MICROSMITH, INC.
EMPIRE AIR SYSTEMS, INC.
Each By /s/ Xxxxxx X. Xxxxxxx
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Their Secretary
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