EXHIBIT 00.xx
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE,
GUARANTY AGREEMENTS AND RELATED LOAN DOCUMENTS
THIS FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, GUARANTY AGREEMENTS
AND RELATED LOAN DOCUMENTS (this "Modification Agreement") is entered into
effective as of June 30, 2002, by and between SBS TECHNOLOGIES, INC., a New
Mexico corporation ("Borrower"), BANK OF AMERICA, N.A., formerly NationsBank,
N.A., a national banking association ("Lender"), and the Subsidiaries of
Borrower listed as Guarantors on the signature pages hereof (the "Guarantors").
RECITALS:
WHEREAS, Borrower and Lender (under its prior name, NationsBank, N.A.)
have previously executed that certain Credit Agreement (as modified, amended and
supplemented from time to time, the "Credit Agreement") dated as of December 1,
1998, pursuant to which Lender has made available to Borrower a revolving credit
loan facility, which Credit Agreement has been amended by (i) that certain Note
Modification Agreement dated as of November 30, 1999, (ii) Modification of
Credit Agreement, Guaranty Agreements and Related Loan Documents dated as of
January 31, 2000 (the "First Modification"), (iii) Second Modification of Credit
Agreement, Guaranty Agreements and Related Loan Documents dated as of March 31,
2000 (the "Second Modification"), and (iv) Third Modification of Credit
Agreement, Guaranty Agreements and Related Loan Documents dated as of March 31,
2001 (the "Third Modification") (any capitalized term used but not otherwise
defined herein shall have the meaning set forth in the Credit Agreement); and
WHEREAS, the indebtedness under the Credit Agreement is evidenced by
that certain Second Amended and Restated Revolving Promissory Note (the "Second
Restated Note") dated March 31, 2000, in the principal face amount of
$30,000,000.00, executed by Borrower and payable to the order of Lender, which
Second Restated Note amended and restated that certain Amended and Restated
Revolving Promissory Note dated January 31, 2000, in the principal face amount
of $25,000,000.00, which had amended and restated that certain Revolving
Promissory Note dated December 1, 1998, in the principal face amount of
$15,000,000.00, executed by Borrower and payable to the order of Lender; and
WHEREAS, Lender, Borrower and the Guarantors have agreed to a reduction
in the revolving credit facility from $30,000,000 to $20,000,000, and certain
other modifications to the Credit Agreement, the Note, the Guaranty Agreements
and the other Loan Documents, subject to and upon the terms and conditions
hereof.
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 1
GUARANTY AGREEMENTS AND RELATED LOAN DOCUMENTS 303397v5
AGREEMENT:
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for and in
consideration of the terms, conditions and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Lender, Borrower and the Guarantors agree as follows:
1. Reduction in Available Commitment. From and after the effective date
hereof, the maximum amount of the revolving credit facility under the Credit
Agreement shall be reduced and decreased from $30,000,000.00, to $20,000,000.00.
Accordingly, the definition of "Available Commitment" set forth in Section 1.1
of the Credit Agreement shall be amended to read in its entirety as follows:
"Available Commitment" means the maximum amount available to
be advanced under the Credit Facility, being $15,000,000.00 as of the
Closing Date through January 30, 2000; $25,000,000.00 as of January 31,
2000 through March 30, 2000; $30,000,000.00 as of March 31, 2000
through June 30, 2002; and $20,000,000.00 from and after June 30, 2002,
subject to reduction as provided in Section 3.6(c)."
2. Second Restated Note. Notwithstanding the principal face amount of
the Second Restated Note, from and after the date hereof, the maximum principal
available to be advanced thereunder shall be limited to $20,000,000.
3. Guaranty Agreements. Each of the undersigned Guarantors expressly
acknowledges and agrees to the reduction in the Available Commitment to
$20,000,000, and agrees that its respective Guaranty Agreement, and all
indebtedness and obligations and agreements thereunder, are and shall remain in
full force and effect with respect to the reduced Available Commitment and all
amounts that may at any time be outstanding thereunder. Each Guarantor expressly
acknowledges and consents to the terms of this Modification Agreement and agrees
that pursuant to its respective Guaranty Agreement, such Guarantor continues to
guarantee the Second Restated Note and all of the Obligations under and as
defined in the Credit Agreement, as modified, hereby, jointly and severally with
all other Guarantors.
4. Merger Transaction and Name Change. Borrower represents to Lender
that SBS Technologies, Inc., Modular I/O, f/k/a SBS Greenspring Modular I/O,
Inc. ("SBS Modular"), was merged into SBS Technologies, Inc., Connectivity
Products, f/k/a SBS Bit 3 Operations, Inc. ("SBS Connectivity"), with SBS
Connectivity being the surviving corporation, as evidenced by the Articles of
Merger and Plan of Merger dated April 9, 2002, as filed with the Secretary of
State of Minnesota and effective May 8, 2002 (the "Merger Documents"); and
Lender acknowledges and consents to such merger. Accordingly, SBS Modular is no
longer in existence as a separate corporation and is no longer a Guarantor;
provided, however, that all assets of SBS Modular shall continue to be covered
by and subject to the Security Agreement, and pledged as security for the
Obligations pursuant thereto, as assets of SBS Connectivity as a result of such
merger, and all obligations of SBS Modular under its Guaranty Agreement are now
obligations of SBS Connectivity (n/k/a SBS Commercial as set forth in Paragraph
5 below).
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 2
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5. Guarantor Names. Effective upon the filing of the Merger Documents,
the name of SBS Connectivity as stated in the Credit Agreement has changed to
SBS Technologies, Inc., Commercial Group. In addition, the name of SBS
Technologies, Inc., Embedded Computers, f/k/a SBS Embedded Computers, Inc.
("Embedded Computers"), has changed to SBS Technologies, Inc., Government Group,
as evidenced by the Articles of Amendment of such corporation filed with the New
Mexico Public Regulation Commission on June 4, 2002. Accordingly, the following
definitions are hereby added to Section 1.1 of the Credit Agreement in
alphabetical order:
"Commercial Group" means SBS Technologies, Inc., Commercial
Group, f/k/a SBS Technologies, Inc., Connectivity Products, f/k/a SBS
Bit 3 Operations, Inc., a Minnesota corporation, and which corporation
is the successor by merger of SBS Technologies, Inc., Modular I/O,
formerly SBS GreenSpring Modular I/O; and all references in the Credit
Agreement, the Guaranty Agreements and other Loan Documents to the
corporate names of any such corporations, in their capacities as a
Guarantor or otherwise, shall from and after the date hereof be deemed
to refer to such newly named successor corporation.
"Government Group" means SBS Technologies Inc., Government
Group, f/k/a SBS Technologies, Inc., Embedded Computers, f/k/a SBS
Embedded Computers, Inc., a New Mexico corporation; and all references
in the Credit Agreement, the Guaranty Agreements and other Loan
Documents to the corporate name of such corporation in its capacity as
a Guarantor or otherwise, shall from and after the date hereof be
deemed to refer to such corporation under its new name.
6. Changes and Additions to Negative Covenants. Various covenants, and
related definitions, under Article VI of the Credit Agreement entitled "Negative
Covenants", shall be amended as follows:
(a) Permitted Acquisitions. The amount available under the revolving
credit facility that may be used for Permitted Acquisitions shall be reduced
from $10,000,000 to $5,000,000. In connection therewith, the definition of
"Permitted Acquisition" in Section 1.1 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"Permitted Acquisition" means (a) an Acquisition in which (i)
the Acquisition Consideration therefor is less than $5,000,000, (ii)
after giving effect to such Acquisition, the aggregate Acquisition
Consideration for all Acquisitions during the Credit Period, together
with the aggregate Minority Investment Consideration for all Minority
Investments made during the Credit Period, is less than $5,000,000,
(iii) as of the Acquisition Date for such Acquisition the aggregate
amount outstanding under the Credit Facility is less than $5,000,000,
and (iv) all of the requirements set forth in Section 6.7 have been
satisfied with respect to such Acquisition, or (b) an Acquisition for
which the requirements of Section 6.7 have been satisfied (unless
waived by Lender) and that has been specifically approved in writing by
Lender prior to the Acquisition Date therefor.
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 3
GUARANTY AGREEMENTS AND RELATED LOAN DOCUMENTS 303397v5
(b) Senior Funded Debt To EBITDA Ratio. The manner in which the Senior
Funded Debt to EBITDA Ratio is calculated shall be changed for the balance of
the Credit Period. In connection therewith, Section 6.8 of the Credit Agreement
is hereby amended in its entirety to read as follows:
SECTION 6.8. Senior Funded Debt To EBITDA Ratio. Borrower
shall not permit the Senior Funded Debt To EBITDA Ratio to be more than
1.25 to 1.00, as determined in the following manner:
(a) For the fiscal quarter of Borrower ending March
31, 2002, the Senior Funded Debt To EBITDA Ratio shall be
determined on the last day of such fiscal quarter of Borrower
for the immediately preceding four (4) consecutive fiscal
quarters of Borrower, with such ratio being calculated without
deduction from EBITDA for the non-recurring charge in the
approximate amount of $13,428,000 taken by Borrower during the
quarter ending December 31, 2001; and
(b) Beginning with the fiscal quarter of Borrower
ending June 30, 2002, and for the balance of the Credit
Period, the Senior Funded Debt To EBITDA Ratio shall be
determined on the last day of each successive fiscal quarter
of Borrower on an annualized basis by multiplying EBITDA for
the most recent two fiscal quarters by two (2), with such
ratio being calculated without deduction for the non-recurring
charge (for severances) in the approximate amount of
$2,700,000 taken by Borrower during the quarter ending June
30, 2002.
(c) Cash Flow Coverage Ratio. Section 6.9 of the Credit Agreement,
providing for a Fixed Charge Coverage Ratio, is hereby waived and shall not
apply for the balance of the Credit Period, and a cash flow coverage ratio shall
be implemented in its stead. In connection therewith, Section 6.9 of the Credit
Agreement is amended to read as follows for the quarters ending June 30,
September 30 and December 31 of 2002, after which the Fixed Charge Covenant
Ratio shall again apply as set forth in the Credit Agreement without regard to
this Modification Agreement:
SECTION 6.9. Cash Flow Coverage Ratio. For the fiscal quarters
of Borrower ending June 30, September 30 and December 31, 2002,
Borrower shall not permit the Cash Flow Coverage Ratio to be less than
1.50 to 1.00, as determined on the last day of each such fiscal quarter
of Borrower.
For purposes of this interim covenant in Section 6.9 of the Credit Agreement,
the following definition of "Cash Flow Coverage Ratio" shall be added in
alphabetical order to Section 1.1 of the Credit Agreement:
"Cash Flow Coverage Ratio" means, for any date of
determination, the ratio of (a) the sum of (i) EBITDA plus (ii)
Operating Lease Expense, to (b) the sum of (i) Interest Expense plus
(ii) Operating Lease Expense, with EBITDA being calculated on an
annualized basis by multiplying EBITDA for the immediately preceding
two (2) fiscal
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 4
GUARANTY AGREEMENTS AND RELATED LOAN DOCUMENTS 303397v5
quarters of Borrower by two (2), and with Operating Lease Expense and
Interest Expense being calculated for the immediately preceding four
(4) fiscal quarters of Borrower.
The calculation of EBITDA provided in Sections 6(b) and 6(c) above shall control
over any inconsistency in the definition of EBITDA in the Credit Agreement for
the applicable periods.
(d) Tangible Net Worth. Borrower and Lender have agreed to modify
Tangible Net Worth and the manner in which it is calculated. In connection
therewith, Section 6.10 of the Credit Agreement is hereby amended in its
entirety from and after the effective date hereof to read as follows:
"SECTION 6.10. Tangible Net Worth. Borrower shall not permit
Tangible Net Worth at any time to be less than the sum of (a)
Seventy-Eight Million and No/100 Dollars ($78,000,000.00), plus (b)
seventy-five percent (75%) of the cumulative consolidated net income of
Borrower for each calendar quarter commencing on April 1, 2002, through
the quarter ending immediately prior to, or on, the date as of which
compliance with this covenant is being measured, plus (c) seventy-five
percent (75%) of the amount of any proceeds (less reasonable and
customary transaction costs) received by Borrower from the issuance of
any additional shares of stock or other equity instruments."
(e) Minimum Liquidity. Borrower and Lender have agreed to add a
covenant providing requirements for Minimum Liquidity of Borrower. Accordingly,
Section 6.16 is hereby added to the Credit Agreement to read as follows:
"SECTION 6.16. Minimum Liquidity. Borrower shall not, at any
time, permit its aggregate unencumbered and unrestricted Liquid Assets
to be less than $10,000,000. "Liquid Assets" means, as of any date, the
aggregate amount of Borrower's (a) cash and obligations issued or
guaranteed by the United States of America, (b) obligations issued or
guaranteed by any person controlled or supervised by and acting as an
agency or instrumentality of the United States of America pursuant to
authority granted by the Congress of the United States, (c)
certificates of deposit issued, or banker's acceptances drawn on and
accepted by, or money market accounts or time deposits in, commercial
banks which are members of the Federal Deposit Insurance Corporation
and which have a combined capital, surplus and undistributed profits of
at least $50,000,000, (d) repurchase agreements with any such
commercial bank, or with broker-dealers or other institutions, that are
secured by obligations issued or guaranteed by the United States of
America or an agency or instrumentality thereof, (e) other money market
instruments and mutual funds, substantially all of the assets of which
are invested in any or all of the investments described in clauses (a)
through (d) above, and (f) commercial paper rated P-1 by Xxxxx'x
Investors Service, Inc. or A11 by Standard & Poor's Corporation on the
date of acquisition (the value of which shall be determined in
accordance with generally accepted accounting principles)."
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 5
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7. Modification Fee. In consideration of the modification of the Credit
Facility and the Credit Agreement as set forth herein, Borrower shall pay to
Lender a facility fee in the amount of Twenty Thousand and No/100 Dollars
($20,000.00).
8. Definition of Documents. All references to the Credit Agreement
therein and in the other Loan Documents shall mean the Credit Agreement as
amended hereby. The definition of "Loan Documents", as defined in and as used in
the Credit Agreement, each Guaranty Agreement and all other Loan Documents,
shall be, and is hereby, modified to include this Modification Agreement and any
and all documents executed in connection herewith.
9. Conditions Precedent to this Modification Agreement. As conditions
precedent to this Modification Agreement and the agreements herein and
modifications to the Credit Agreement pursuant hereto, except with respect to
Section 9(d) below, which shall be a condition subsequent, all of the following
shall have been satisfied:
(a) Borrower and the Guarantors shall have executed and delivered to
Lender this Modification Agreement;
(b) Borrower shall have delivered, or cause to be delivered, to Lender
all corporate resolutions, consents, certificates or documents as Lender may
request relating to the corporate authority for the execution, enforceability
and validity of this Modification Agreement, together with all other documents,
instruments and agreements and any other matters relevant hereto or thereto, all
in form and content satisfactory to Lender;
(c) Borrower shall have delivered, or cause to be delivered, to Lender
final, and if applicable, fixed and/or certified copies of any and all
applicable certificates or documents as Lender may request that may be issued by
the Minnesota Secretary of State evidencing (i) the receipt, filing and
effectiveness of the Merger Documents and (ii) the change in name of SBS
Connectivity to SBS Technologies, Inc., Commercial Group; and
(d) Within 60 days after the date of this Modification Agreement,
Borrower shall have delivered, or cause to be delivered, to Lender final, and if
applicable, fixed and/or certified copies of any and all applicable certificates
or documents as Lender may request that may be issued by the California
Secretary of State evidencing (i) the termination of corporate existence of SBS
Modular in California and (ii) the qualification, authority and good standing of
Commercial Group to transact business within the State of California; and
(e) Borrower shall have delivered, or cause to be delivered, to Lender
any and all applicable certificates or documents as Lender may request that may
be issued by the New Mexico Public Regulation Commission evidencing the change
in name of Embedded Computers to SBS Technologies, Inc., Government Group; and
(f) Borrower shall have paid to Lender the $20,000.00 modification fee
and any other fees as agreed in connection with this Modification Agreement; and
(g) No Default or Event of Default shall exist.
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 6
GUARANTY AGREEMENTS AND RELATED LOAN DOCUMENTS 303397v5
10. Reaffirmation of Obligations. Borrower and the Guarantors
acknowledge and agree that they are well and truly indebted to Lender pursuant
to the Credit Agreement, the respective Guaranty Agreements, the Second Restated
Note and the other Loan Documents, as modified hereby. Except as expressly
modified hereby, all terms, provisions, representations, warranties, covenants
and agreements of Borrower and each Guarantor contained in the Credit Agreement,
each Guaranty Agreement, and the other Loan Documents shall remain unchanged and
are hereby ratified and confirmed by Borrower and the Guarantors, and all such
agreements shall be and shall remain in full force and effect, enforceable in
accordance with their terms.
11. No Implied Waivers. None of the amendments or modifications
provided for herein shall be deemed a consent to or waiver of any breach of the
same or any other covenant, condition or duty. Borrower and the Guarantors
acknowledge and understand that Lender has no obligation to further amend or
modify the Credit Agreement, the Note, the Second Restated Note or any of the
other Loan Documents, or any of the terms, provisions or covenants thereof, and
that Lender has made no representations regarding any such amendments or
modifications. No failure or delay on the part of Lender in exercising, and no
course of dealing with respect to, any right, power or privilege under this
Modification Agreement, the Credit Agreement, the Guaranty Agreements, or any
other Loan Document shall operate as a waiver thereof or of the exercise of any
other right, power or privilege.
12. Representations and Warranties. Borrower hereby represents and
warrants to Lender that (a) the execution, delivery, and performance by the
Borrower and the Guarantors of this Modification Agreement and compliance with
the terms and provisions hereof (i) have been duly authorized by all requisite
action on the part of each such Person and (ii) do not, and will not violate or
conflict with, or result in a breach of, or require any consent under (A) the
articles of incorporation, certificate of incorporation, bylaws, partnership
agreement or other organizational documents of any such Person, (B) any
applicable law, rule, or regulation or any order, writ, injunction, or decree of
any Tribunal or arbitrator, or (C) any material agreement or instrument to which
any such Person is a party or by which any of them or any of their property is
bound or subject; (b) the signatories below have been duly authorized by all
necessary corporate action to make and enter into this Modification Agreement as
the duly authorized action and deed of Borrower and each of the Guarantors; (c)
the representations and warranties contained in the Credit Agreement, as amended
hereby, and the other Loan Documents are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof; and (d) upon execution and effectiveness hereof, no Default or Event of
Default has occurred and is continuing.
13. Ratification. Except as otherwise expressly modified by this
Modification Agreement, all terms and provisions of the Credit Agreement, the
Second Restated Note, the Guaranty Agreements and the other Loan Documents shall
remain unchanged and are ratified and confirmed and shall be and shall remain in
full force and effect, enforceable in accordance with their terms.
14. Further Assurances. Borrower shall execute and deliver to Lender
such other documents as may be necessary or as may be required, in the opinion
of Lender and/or counsel to Lender to effect the transactions contemplated
hereby and to create and evidence the rights and remedies of the Lender under
the Loan Documents.
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 7
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15. Inconsistent Provisions. This Modification Agreement shall control
in the case of any inconsistency between the terms and provisions hereof and
those contained in the other Loan Documents.
16. Binding Agreement. This Modification Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
legal representatives, successors and assigns.
17. GOVERNING LAW. THIS MODIFICATION AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW MEXICO, EXCEPT TO
THE EXTENT THAT UNITED STATES FEDERAL LAW APPLIES.
18. Counterparts; Telecopies. This Modification Agreement may be
executed in multiple counterparts, each of which shall be deemed an original for
all purposes, and all of which, collectively, shall constitute one agreement. In
addition, due execution of this Modification Agreement by any party may be
evidenced by a telecopy reflecting such party's signature. Any party to this
Modification Agreement shall be entitled to receive upon request, from any other
party that has previously forwarded an executed counterpart of any such document
by telecopy, a duplicate of such document bearing such other party's ink
original signature.
19. Entire Agreement. This Modification Agreement, the Credit
Agreement, the Third Restated Note and the Guaranty Agreements, together with
the other Loan Documents, contain the entire agreement between the parties
relating to the subject matter hereof and thereof.
THIS MODIFICATION AGREEMENT, TOGETHER WITH THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 8
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IN WITNESS WHEREOF, this Modification Agreement is executed effective
as of the date first above written.
BORROWER:
SBS TECHNOLOGIES, INC., a New Mexico corporation
/s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------------
Vice President, Finance and Administration
LENDER:
BANK OF AMERICA, N.A.,
a national banking association
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------------------
Title: Senior Vice President
---------------------------------------------
GUARANTORS:
SBS TECHNOLOGIES, INC., COMMERCIAL GROUP, f/k/a SBS
Technologies, Inc., Connectivity Products, f/k/a SBS
Bit 3 Operations, Inc., a Minnesota corporation and
successor by merger to SBS Technologies, Inc.,
Modular I/O, a California corporation
/s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------------
Treasurer
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 9
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SBS TECHNOLOGIES, INC., GOVERNMENT GROUP, f/k/a SBS
Technologies, Inc., Embedded Computers, f/k/a SBS
Embedded Computers, Inc., a New Mexico corporation
/s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------------
Treasurer
SBS TECHNOLOGIES INC., INDUSTRIAL COMPUTERS, f/k/a
SBS Micro Alliance, Inc.
/s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------------
Treasurer
SBS TECHNOLOGIES INC., COMMUNICATIONS PRODUCTS,
f/k/a VI Computer
/s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------------
Treasurer
SDL COMMUNICATIONS, INC.
/s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------------
Treasurer
FOURTH MODIFICATION OF CREDIT AGREEMENT, NOTE, PAGE 10
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