FIRST AMENDMENT
to
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT (the "Amendment"), dated as of August 2, 1996 (the
"First Amendment Date") to Amended and Restated Credit Agreement, made by The
Chase Manhattan Bank (successor by merger to The Chase Manhattan Bank, N.A.), a
New York banking corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Bank") and DEL GLOBAL TECHNOLOGIES CORP., formerly
known as Del Electronics Corp., a New York corporation having an office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Del"), RFI CORPORATION, a Delaware
corporation having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("RFI"), DYNARAD CORP., a New York corporation having an office at ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Dynarad"), BERTAN HIGH VOLTAGE CORP.,
formerly known as Del Acquisition Corp., a New York corporation having an office
at ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Bertan High Voltage"), DEL
MEDICAL SYSTEMS CORP., a New York corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Del Medical"), and GENDEX-DEL MEDICAL IMAGING
CORP., a Delaware corporation having an office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Gendex-DMI" and together with Del, RFI, Dynarad,
Bertan High Voltage, and Del Medical hereinafter sometimes referred to
collectively as the "Debtors").
W I T N E S S E T H
WHEREAS, the Debtors and the Bank entered into an Amended and Restated
Credit Agreement (the "Agreement") dated as of March 5, 1996, pursuant to the
terms of which the Bank agreed to make certain financial accommodations
available to the Debtors;
WHEREAS, all capitalized terms used in the Agreement and not otherwise
defined herein shall have the meanings given to them in the Agreement;
WHEREAS, as of the First Amendment Date, the outstanding principal
balance of the Revolving Credit Loans is $100,000 and the outstanding principal
balance of the Term Loan is $500,000, to both of which there are no defenses or
offsets;
WHEREAS, the Debtors and the Bank have agreed, among other things, to
convert the Term Loan facility to a standby term loan facility, to modify
certain amortization provisions contained in the Agreement, to release the
Bank's security interest in certain assets of the Debtors, to modify certain
covenants contained in the Agreement, and to modify the interest rates
applicable to loans made under the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, the Debtors and the Bank hereby agree as follows:
94-350-4D:del1am.006:August 7, 1996
A. Modification of Agreement
1. Section 1.1. Section 1.1 of the Agreement is hereby modified as of the
First Amendment Date by the addition of the following definitions in their
proper alphabetical positions:
Acquisition shall mean the acquisition by Del or any of its
wholly-owned subsidiaries of another entity or all or substantially all of
the assets of another entity. Additional Term Loan shall have the meaning
assigned to such term in Section 2.1.
Additional Term Note or Additional Term Notes shall mean the
additional term loan note or notes executed and delivered by the Debtors
pursuant to Section 2.3(b), in substantially the form of Exhibit A-1
hereto, as such may be amended, modified or restated from time to time.
Declaration of Restrictions shall mean the declaration of
restrictions, in substantially the form of Exhibit N hereto, as such may be
amended, modified or restated from time to time.
First Amendment shall mean the amendment to the Agreement dated as of
August 2, 1996.
First Amendment Date shall mean August 2, 1996.
Negative Pledge Agreement shall mean the Negative Pledge Agreement, in
substantially the form of Exhibit M hereto, as such may be amended,
modified or restated from time to time.
Standby Term Loan Commitment shall mean the Standby Term Loan
Commitment of the Bank as set forth in Section 2.1.
Standby Term Loan Commitment Fee shall mean the Standby Term Loan
Commitment Fee as set forth in Section 2.6.
Standby Term Loan Commitment Period shall mean the period from and
including the First Amendment Date to, but not including the Term Loan
Maturity Date.
Term Loan "A" shall have the meaning assigned to such term in Section
2.1.
2. Section 1.1. Section 1.1 of the Agreement is hereby further modified by
the deletion of the definitions for the terms, "Loans," "Note or Notes," and
"Term Loan" and the substitution of the following therefor:
Loans shall mean the Term Loans, the Revolving Credit Loan, the Letter
of Credit Facility or any or all of them, as the context may require.
Note or Notes shall mean the Term Note, the Additional Term Notes
and/or the Revolving Credit Note, as the context may require.
Term Loan or Term Loans shall mean any or all of Term Loan "A" and the
Additional Term Loans, as the context may require.
3. Section 1.1 Section 1.1 of the Agreement is hereby further modified by
the deletion of the terms, "Bertan Security Agreement," "Del Medical Security
Agreement," "Del Security Agreement," "Dynarad Security Agreement," "Gendex-DMI
Security Agreement," "Indemnification Agreement," "Mortgage," "Mortgage
Modification Agreement ▇▇. ▇," "▇▇▇▇▇▇▇▇▇," "Modification and Reaffirmation of
Indemnity," "RFI Security Agreement," "Subordinate Mortgage," and "Third
Mortgage."
4. Section 2.1. Section 2.1 of the Agreement is hereby deleted as of the
First Amendment Date and the following substituted therefor:
2.1 Term Loans. The Bank has heretofore made a term loan to the
Debtors, the outstanding principal balance of which was, as of the
Restatement Date, $10,000,000.00, and is, as of the First Amendment Date,
$500,000.00 ("Term Loan A"). Subject to the terms and conditions hereof,
the Bank agrees to make additional term loans (each, an "Additional Term
Loan") to the Debtors from time to time during the Standby Revolving Credit
Commitment Period which in the aggregate of the original principal amounts
thereof, when added to the outstanding principal balance as of the First
Amendment Date of Term Loan "A", shall not exceed $10,000,000.00 (the
"Standby Term Loan Commitment"). Payments made on Term Loans may not be
reborrowed. The Debtors shall have the right to reduce or terminate the
amount of the unused Standby Term Loan Commitment at any time or from time
to time, provided that: (a) the Debtors shall have given notice of each
such reduction or termination to the Bank as provided in Section 2.15; and
(b) each partial reduction shall be in an aggregate amount at least equal
to $100,000.00. The Standby Term Loan Commitment once reduced or terminated
may not be reinstated.
5. Section 2.3. Section 2.3 of the Agreement is hereby deleted as of the
First Amendment Date and the following substituted therefor:
2.3 Notes
(a) Term Loans. Term Loan "A" shall be evidenced by a replacement
promissory note of the Debtors substantially in the form of Exhibit A
hereto with appropriate insertions (the "Term Note") payable to the order
of the Bank and dated the First Amendment Date. The principal amount of the
Term Note shall be payable in 19 equal consecutive quarterly installments,
each in the amount of $26,315.27, payable on the last business day of each
fiscal quarter of Del, commencing November 30, 1996 and continuing
thereafter until the entire unpaid principal balance of the Term Note,
together with all accrued and unpaid interest, shall be paid in full on the
Term Loan Maturity Date. The Additional Term Loans shall each be evidenced
by a promissory note of the Debtors substantially in the form of Exhibit
A-1 hereto, dated the date on which such Additional Term Loan is made, with
appropriate insertions (each an "Additional Term Note") payable to the
order of the Bank and representing the obligation of the Debtors to pay the
unpaid principal amount of such Additional Term Loan, with interest thereon
as hereinafter provided. The principal amount of each Additional Term Loan
shall be payable in equal consecutive quarterly installments, payable on
the last business day of each fiscal quarter of Del, commencing on the last
business day of the fiscal quarter in which such Loan is made. Term Loans,
or portions thereof, subject to limitations set forth in Section 2.4(c) and
Section 2.16 hereof, may be outstanding as Variable Rate Loans or
Eurodollar Loans.
6. Section 2.4(d) Section 2.4(d) of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
(d) The Margin that shall apply to Term Loans is set forth below and
is based on the Debtors' Consolidated Interest Expense Coverage Ratio for
the six-month period ending on the most recent Interest Measurement Date
and the Debtors' Leverage Ratio on the most recent Interest Measurement
Date, as reported in the applicable financial statement provided to the
Bank pursuant to Section 5.5 hereof:
---------------------------------------------- ----------------------- -------------------------
Criteria Variable Rate Margin: Eurodollar Margin:
Leverage Ratio Interest Basis Points Basis Points
Coverage
Ratio
---------------------------------------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Greater than and/or Less than 3.00 0 275
1.25 to 1.00 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 250
than 1.25 to greater than
1.00 3.00 to 1.00
but less than
3.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or and Equal to or 0 200
less than 1.25 greater than
to 1.00 3.50 to 1.00
but less than
4.00 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 175
than 1.00 to greater than
1.00 4.00 to 1.00
but less than
4.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 150
than .75 to 1.00 greater than
4.50 to 1.00
but less than
5.00 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 125
than .50 to 1.00 greater than
5.00 to 1.00
but less than
5.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 100
than .25 to 1.00 greater than
5.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
Upon acceptance by the Bank of such calculations, Margin adjustments
resulting from such calculations shall become retroactively effective
as of the first day of the calendar month in which the above referenced
financial statements shall have been presented to the Bank.
7. Section 2.4(e) Section 2.4(e)of the Agreement is hereby deleted as
of the First Amendment Date and the following substituted therefor:
(e) The Margin that shall apply to Revolving Credit Loans is set forth
below and is based on the Debtors' Consolidated Interest Expense Coverage
Ratio for the six-month period ending on the most recent Interest
Measurement Date and the Debtors' Leverage Ratio on the most recent
Interest Measurement Date, as reported in the applicable financial
statement provided to the Bank pursuant to Section 5.5 hereof:
---------------------------------------------- ----------------------- -------------------------
Criteria Variable Rate Margin: Eurodollar Margin:
Leverage Ratio Interest Basis Points Basis Points
Coverage
Ratio
---------------------------------------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Greater than and/or Less than 3.00 0 250
1.25 to 1.00 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 225
than 1.25 to greater than
1.00 3.00 to 1.00
but less than
3.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or and Equal to or 0 175
less than 1.25 greater than
to 1.00 3.50 to 1.00
but less than
4.00 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 150
than 1.00 to greater than
1.00 4.00 to 1.00
but less than
4.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 125
than .75 to 1.00 greater than
4.50 to 1.00
but less than
5.00 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 100
than .50 to 1.00 greater than
5.00 to 1.00
but less than
5.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
------------------ ---------- ---------------- ----------------------- -------------------------
Equal to or less and Equal to or 0 75
than .25 to 1.00 greater than
5.50 to 1.00
------------------ ---------- ---------------- ----------------------- -------------------------
Upon acceptance by the Bank of such calculations, Margin adjustments
resulting from such calculations shall become retroactively effective
as of the first day of the calendar month in which the above referenced
financial statements shall have been presented to the Bank.
8. Section 2.5 Section 2.5 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
2.5 Procedure for Revolving Credit and Term Loan Borrowing.
The Debtors may borrow under the Revolving Credit Commitment during the
Revolving Credit Commitment Period and under the Standby Term Loan
Commitment during the Standby Term Loan Period on any Business Day by
giving the Bank written or facsimile notice of a request for a
Revolving Credit Loan or an Additional Term Loan hereunder, as the case
may be, setting forth the amount of the Loan requested and the date
thereof, and, in the case of an Additional Term Loan, setting forth the
terms of the Acquisition to be financed by such Additional Term Loan
and any information regarding such Acquisition that the Bank may
reasonably require. Prior to the advance to the Debtors of an
Additional Term Loan, or portion thereof, the Debtors shall deliver to
the Bank an Additional Term Loan Note in the amount of the Additional
Term Loan being requested. Additional Term Loans are subject to the
Bank's prior written approval of the terms of the Acquisition to be
financed by such Additional Term Loan, which approval shall be in the
Bank's sole discretion, except that the Debtors shall be permitted to
make Acquisitions without the Bank's approval, provided, however, that
such Acquisitions do not exceed, in the aggregate, $3,000,000,
calculated from the First Amendment Date. Except for borrowings which
exhaust the full remaining amount of the Revolving Credit Commitment,
or Standby Term Loan Commitment, as the case may be, and except for
Eurodollar Loans, each borrowing under the Revolving Credit Commitment
and each borrowing under the Standby Term Loan Commitment shall be in
an amount at least equal to $100,000. Such notice shall be sufficient
if given within the time period set forth therefor in Section 2.15,
provided, however, that in the case of Additional Term Loans, the Bank
shall have theretofore given its approval of the Acquisition being
funded, where such approval is required.
9. Section 2.6 Section 2.6 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
2.6 Fees. (a) As additional compensation for the Revolving
Credit Commitment and Letter of Credit Facility provided for herein,
the Debtors, jointly and severally, agree to pay the Bank a Commitment
Fee during the Revolving Credit Commitment Period at a rate equal to
one-quarter of one percent (.25%) per annum of the average daily unused
portion of the combined (i) Revolving Credit Commitment, and, without
duplication, (ii) the Letter of Credit Facility. The Commitment Fee
shall be payable quarterly in arrears on the last day of each January,
April, July, and October during the Revolving Credit Commitment Period
and at the time of the termination of the Revolving Credit Commitment.
(b) As additional compensation for the Standby Term Loan
Commitment provided for herein, the Debtors, jointly and severally,
agree to pay the Bank a Standby Term Loan Commitment Fee during the
Standby Term Loan Commitment Period at a rate equal to one-quarter of
one percent (.25%) per annum of the average daily unused portion of the
Standby Term Loan Commitment (excluding all portions of the Standby
Term Loan Commitment which have been borrowed and repaid by the
Debtors). The Standby Term Loan Commitment Fee shall be payable
quarterly in arrears on the last day of each January, April, August,
and October during the Standby Term Loan Commitment Period and at the
time of the termination of the Standby Term Loan Commitment.
10. Section 2.15 Section 2.15 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
2.15 Certain Notices. Notices by the Debtors to the Bank of
each borrowing, prepayment or conversion, and each renewal hereunder
shall be irrevocable and shall be effective only if received by the
Bank not later than 2:00 p.m. (in the case of Variable Rate Loans) and
11:00 a.m. (in the case of Eurodollar Loans), both New York City time,
and in the case of borrowings and prepayments of, conversions into and
(in the case of Eurodollar Loans) renewals of (i) Variable Rate Loans,
given not later than 2:00 p.m. on the date of such request; and (ii)
Eurodollar Loans, given three Business Days prior thereto no later than
11:00 a.m. on the date of such request. Each such notice shall specify
the Loans to be borrowed, prepaid, converted or renewed and the amount
and type of the Loans to be borrowed, or converted, or prepaid or
renewed (and, in the case of a conversion, the type of Loans to result
from such conversion and, in the case of a Eurodollar Loan, the
Interest Period therefor) and the date of the borrowing or prepayment,
or conversion or renewal (which shall be a Business Day).
11. Section 3.12 Section 3.12 of the Agreement is hereby deleted and
the words "Section 3.12 Intentionally Omitted" are inserted in its place.
12. Section 3.13 Section 3.13 of the Agreement is hereby modified as of
the First Amendment Date by the addition of the following at the end thereof:
The proceeds of the Additional Term Loans shall be used only for the
payment of the purchase price of the Acquisitions which, to the extent
such proceeds of the Additional Term Loans exceed, in the aggregate,
$3,000,000, calculated from the First Amendment Date, shall have been
approved in writing prior thereto by the Bank.
13. Section 4.1 Section 4.1 of the Agreement is hereby modified as of
the First Amendment Date by the addition of the following paragraph (e) at the
end thereof:
(e) In the case of borrowings under the Standby Term Loan
Commitment, the Bank shall have received an Additional Term Note in the
amount of the borrowing, duly executed by the Debtors payable to its
order and otherwise complying with the provisions of Section 2.3.
14. Section 5.3 Section 5.3 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
5.3 Insurance. Each Debtor will (a) keep its insurable
properties adequately insured at all times by financially sound and
reputable insurers, (b) maintain such other insurance, to such extent
and against such risks, including fire and other risks insured against
by extended coverage, as is customary with companies similarly situated
and in the same or similar businesses, (c) maintain in full force and
effect public liability insurance against claims for personal injury or
death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by such
Debtor, in such amount as it shall reasonably deem necessary, and (d)
maintain such other insurance as may be required by law or as may be
reasonably requested by the Bank for purposes of assuring compliance
with this Section 5.3. All such insurance shall provide for at least 30
days' prior written notice to the Bank of the cancellation or material
modification thereof.
15. Section 6.1 Paragraph (h) of Section 6.1 of the Agreement is hereby
deleted as of the First Amendment Date and the words "Paragraph (h)Intentionally
Omitted" are inserted in its place.
16. Section 6.7 Section 6.7 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
6.7 Investments. (a) Own, purchase or acquire any stock, obligations,
assets or securities of, or any interest in, or make any capital
contribution or loan or advance to, any other person, or make any other
investments with an aggregate fair market value exceeding $250,000.00
(valued at the time of the acquisition thereof), except that the
Debtors may (i) own, purchase or acquire certificates of deposit of the
Bank or any FDIC-insured commercial bank registered to do business in
any state of the United States having capital and surplus in excess of
$500,000,000; (ii) own, purchase or acquire obligations of the United
States government or any agency thereof which are backed by the full
faith and credit of the United States; (iii) own, purchase or acquire
commercial paper of a domestic issuer rated at least A-1 by Standard
and Poor's Corporation or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc.; (iv)
subject to the provisions of Section 6.7(b) hereof, purchase or acquire
during any fiscal year of Del (a "Fiscal Year") shares of the common
stock of Del ("Common Stock") with an aggregate fair market value of
not more than $1,500,000 (valued at the time of the acquisition
thereof), and thereafter own all such shares so purchased or acquired;
(v) own, purchase, or acquire stock, obligations and/or securities of
any other person provided that such stock, obligations and/or
securities are held by the Debtors in the deferred compensation
account(s) which are maintained by Del for the benefit of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇; and (vi) make Acquisitions with the proceeds of Additional
Term Loans provided, however, that the Bank shall have given its prior
written approval of such Acquisitions to the extent that they exceed,
in the aggregate, $3,000,000 calculated from the First Amendment Date.
(b) The right of the Debtors to repurchase shares of Common Stock
pursuant to Section 6.7(a)(iv) hereof is subject to the following:
(i) The Debtors may during any Fiscal Year repurchase shares
of the Common Stock with an aggregate fair market value of not more
than $750,000 (valued at the time of the acquisition thereof) if (A)
no default under Section 6.4, Section 6.8, Section 6.9 or Section 6.11
of this Agreement shall have occurred and be continuing at the time of
such repurchase and (B) after giving effect to such repurchase of
shares, no default shall exist under Section 6.9 hereof.
(ii) In addition to the shares of Common Stock which may be
repurchased pursuant to subsection (i) above, during any Fiscal Year
the Debtors may repurchase additional shares of the Common Stock with
an aggregate fair market value (valued at the time of the acquisition
thereof) equal to (A) the dollar amount of the increase in
Consolidated Tangible Net Worth of the Debtors for the Fiscal Year,
minus (B) $1,250,000; provided, however, that (x) in no event may the
Debtors during any Fiscal Year repurchase additional shares of Common
Stock pursuant to the provisions of this subsection (ii) with an
aggregate fair market value in excess of $750,000 (valued at the time
of the acquisition thereof) and (y) in no event may the Debtors
repurchase additional shares of Common Stock pursuant to the
provisions of this subsection (ii) if, after giving effect to such
repurchase of additional shares, a default shall exist under Section
6.9 hereof.
17. Section 6.8 Section 6.8 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
6.8 Current Ratio. Permit the Consolidated Current Ratio of
the Debtors at any time to be less than 2.50:1.00.
18. Section 6.9 Section 6.9 of the Agreement is hereby deleted as
of the First Amendment Date and the following substituted therefor:
6.9 Tangible Net Worth. Permit the Consolidated Tangible Net
Worth of the Debtors at any time during the periods specified below to
be less than:
Period Amount
Fiscal year ending 8/2/96 $33,450,000
Fiscal year ending 8/1/97 $34,800,000
Fiscal year ending 7/31/98 $36,050,000
Fiscal year ending 7/31/99 $37,300,000
Fiscal year ending 7/29/00 $38,550,000
Fiscal year ending 7/31/01 $39,800,000
19. Section 6.16 Section 6.16 of the Agreement is hereby deleted as of
the First Amendment Date and the following substituted therefor:
6.16 Leverage Ratio. Permit the Leverage Ratio of the
Debtors in any fiscal year to exceed 1.25.
20. Section 9.1 Section 9.1 of the Agreement is hereby deleted as of
the First Amendment Date and the words "Section 9.1 Intentionally Omitted"
inserted in its place.
21. Security. As of the First Amendment Date, the Bertan Security
Agreement, the Del Medical Security Agreement, the Del Security Agreement, the
Dynarad Security Agreement, the Gendex-DMI Security Agreement, the RFI Security
Agreement, and the Indemnification Agreement are hereby canceled and all
references in the Agreement to any security interests or mortgages given for the
benefit of the Bank to secure the obligations of the Debtors under the
Agreements are hereby deleted, it being the intention of the parties hereto that
(a) the Loans shall be unsecured and (b) the assets being released from the
Bank's liens shall not be given as security for any other indebtedness and shall
not become subject to any other liens. In furtherance of the foregoing, (i) the
Bank shall execute and deliver to the Debtors such UCC-3 financing statements
and a satisfaction of each of (a) the Mortgage, (b) the Subordinate Mortgage,
and (c) the Third Mortgage,(ii) the Debtors shall execute and deliver to the
Bank the Negative Pledge Agreement, in the form of Exhibit M to the Agreement,
pursuant to which they shall agree not to transfer any of their respective
assets (except for the sale of inventory in the normal course of business) and
not to encumber any of their respective assets except as specifically permitted
by Section 6.1 of the Agreement, and (iii) RFI shall execute and deliver to the
Bank a Declaration of Restrictions, in the form of Exhibit N to the Agreement,
pursuant to which RFI shall agree not to transfer, assign, mortgage or otherwise
encumber its interest in the RFI Real Property.
22. Exhibits. The Agreement is hereby modified as of the First
Amendment Date by: (a) the deletion of Exhibit A and the substitution therefor
of a new Exhibit A, in the form of Exhibit 1 to this Amendment; (b) the addition
of Exhibit A-1 immediately following Exhibit A, in the form of Exhibit 2 to this
Amendment; and (c) the addition of Exhibits M and N immediately following
Exhibit L, in the form, respectively of Exhibits 3 and 4 to this Agreement.
B. Condition of Effectiveness
The obligation of the Bank to enter into this Amendment to the Loan
Agreement and to make or provide any financial accommodation to the Debtors
pursuant to the terms of this Amendment is subject to the condition precedent
that the Bank shall have received each of the following documents, in form and
substance satisfactory to the Bank and its counsel, and each of the following
requirements shall have been fulfilled:
1. This Amendment. The Debtors and the Bank shall each have executed
and delivered this Amendment.
2. The Notes. The Debtors shall have executed and delivered to the Bank
the Term Note in the form of Exhibit 1 to this Amendment and the
Additional Term Note in the form of Exhibit 2 to this Amendment.
3. Negative Pledge Agreement. The Debtors shall have executed and
delivered to the Bank a Negative Pledge Agreement in the form of
Exhibit 3 to this Amendment.
4. Declaration of Restrictions. RFI shall have executed and delivered
to the Bank a Declaration of Restrictions in the form of Exhibit 4 to
this Amendment.
5. Evidence of Corporate Action by Company. The Bank shall have
received a certificate of the Secretary or Assistant Secretary of each
of the Debtors, dated the First Amendment Date, in substantially the
form of Exhibit 5 to this Amendment, attesting to all corporate action
taken by such Debtor, including resolutions of its Board of Directors,
authorizing the execution, delivery, and performance of this Amendment
and each other document to be delivered pursuant to or in connection
with this Amendment, and including a copy of all amendments to such
Debtor's certificate of incorporation and by-laws which are subsequent
to the Restatement Date, a current good standing certificate, and an
incumbency and signature certificate.
6. Officer's Certificate. The following statements shall be true and
the Bank shall have received a certificate, dated the First Amendment
Date, in substantially the form of Exhibit 6 to this Amendment, signed
by a duly authorized officer of each of the Debtors stating that to the
best of his knowledge:
a. The representations and warranties contained in Section 3
of the Agreement and in each of the other Credit
Documents are correct on and as of the First Amendment
Date, as though made on and as of such dates; and
b. No default or Event of Default has occurred and is
continuing, or would result from the execution and
performance by the Debtors of this Amendment or the
Agreement (as amended by this Amendment) or any of the
other Credit Documents; and
c. There has been no material adverse change in the
business, operations, assets or condition, financial or
otherwise, of the Debtors since the date of the most
recent financial statements provided to the Bank.
7. Opinion Letter. The Bank shall have received an opinion of
counsel to the Debtors, substantially in the form of Exhibit 7 to this Amendment
8. Costs and Expenses. The Debtors shall have paid, or reimbursed the
Bank, for all costs, expenses and charges (including, without limitation, all
expenses and reasonable fees of legal counsel for the Bank) incurred in
connection with the negotiation, preparation, reproduction, execution and
delivery of this Amendment and any other instruments and documents to be
delivered hereunder.
C. Reference to and Effect on the Loan Documents
1. Upon the effectiveness of this Amendment, each reference in the
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference in the other Credit Documents to the Agreement, shall
mean and be a reference to the Agreement as amended hereby.
2. Except as specifically amended above, the Agreement and the other
Credit Documents shall remain in full force and effect and are hereby ratified
and confirmed.
3. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Bank under any of the Credit Documents, nor constitute a
waiver of any provision of any of the Credit Documents.
D. Miscellaneous
1. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
2. Headings. Section headings in this Amendment are included herein for
convenience of reference only and do not constitute a part of this Amendment for
any other purpose.
3. Exhibits. Exhibits 1-7 shall constitute integral parts of this
Amendment.
4. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing any such
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
(Corporate Seal) DEL GLOBAL TECHNOLOGIES CORP.
ATTEST: By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
________________________________
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
(Corporate Seal) RFI CORPORATION
ATTEST: By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
(Corporate Seal) DYNARAD CORP.
ATTEST: By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Assistant Secretary
(Corporate Seal) BERTAN HIGH VOLTAGE CORP.
ATTEST: By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
(Corporate Seal)
DEL MEDICAL SYSTEMS CORP.
ATTEST: By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
(Corporate Seal)
GENDEX-DEL MEDICAL IMAGING CORP.
ATTEST: By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary