EXHIBIT 10.11
[EXECUTION COPY]
SECOND AMENDMENT
TO LOAN AGREEMENT
AND CONSENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND CONSENT (this "Second
Amendment"), dated as of June 9, 2003, is made and entered into by and between
TEKELEC, a California corporation ("Borrower"), and UNION BANK OF CALIFORNIA,
N.A., a national banking association ("Bank").
RECITALS:
A. Borrower and Bank are parties to that certain Loan Agreement dated
as of October 31, 2001, as amended by (i) that certain extension letter dated
October 16, 2002 and (ii) that certain First Amendment dated as of December 18,
2002 (as so amended, the "Agreement"), pursuant to which Bank agreed to make a
revolving line of credit (the "Revolving Loan") available to Borrower, providing
for revolving loans by Bank to Borrower from the date of the Agreement to but
excluding August 31, 2004 (the "Revolving Loan Termination Date") in an
aggregate principal amount not to exceed Twenty Million Dollars ($20,000,000) at
any one time outstanding.
B. Borrower has informed Bank that in June, 2003, Borrower intends to
combine the operations of its packet telephony business unit ("PTBU") with the
business operations of Santera Systems Inc., a Delaware corporation ("Santera").
C. In connection with the proposed combination referred to in Recital B
hereinabove, reference is hereby made to that certain Agreement and Plan of
Merger dated as of April 30, 2003 (the "Merger Agreement"), by and among
Borrower, Luke Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Borrower ("Merger Sub"), Santera, those stockholders of Santera
who execute the Merger Agreement (together with such additional parties that may
become parties to the Merger Agreement as Legacy Santera Stockholders after the
date thereof), and Austin Ventures VI, L.P., a Delaware limited partnership,
pursuant to which, among other transactions (collectively, the "Transactions"),
(i) Borrower will contribute to Merger Sub certain assets of Borrower's PTBU and
Twenty-Eight Million Dollars ($28,000,000) in cash, and (ii) immediately
thereafter, Merger Sub will be merged into Santera, with Santera as the
surviving corporation of the merger. After the closing of the merger, Borrower
will own 51.6% of the issued and outstanding capital stock of Santera. The
"Transactions" shall include all transactions contemplated by the Merger
Agreement and the documents referred to therein, including without limitation
the "Stockholders Agreement" and the other "Ancillary Agreements" (as such terms
are defined in the Merger Agreement).
D. Borrower has requested that Bank give its prior written consent to
the consummation of the Transactions in accordance with the terms and conditions
of the
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Merger Agreement, which Transactions would otherwise be prohibited by various
provisions of the Agreement and the Loan Documents (as such term is defined in
the Agreement), including without limitation Subsections 5.3, 5.4, 5.5 and 5.6
of the Agreement. In addition, Borrower has requested that Bank permit Borrower
to contribute the Contributed Assets (as such term is defined in the Merger
Agreement) to Merger Sub, free and clear of Bank's security interest therein.
Bank is willing to consent to the consummation of the Transactions in accordance
with the terms and conditions of the Merger Agreement and to permit Borrower to
contribute the Contributed Assets to Merger Sub, free and clear of Bank's
security interest therein, subject, however, to the terms and conditions of this
Second Amendment.
AGREEMENT:
In consideration of the above recitals and of the mutual covenants and
conditions contained herein, Borrower and Bank agree as follows:
1. DEFINED TERMS. Initially capitalized terms used herein which are not
otherwise defined shall have the meanings assigned thereto in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
(a) Subsection 1.2 of the Agreement is hereby amended by adding new
subsections (d), (e) and (f) thereto, which shall read in full as follows:
"(d) 'Merger Agreement' shall mean that certain Agreement and
Plan of Merger dated as of April 30, 2003, by and among Borrower, Merger Sub,
Santera, those stockholders of Santera who executed the Merger Agreement
(together with such additional parties that may become parties to the Merger
Agreement as Legacy Santera Stockholders after the date thereof), and Austin
Ventures VI, L.P., as such Agreement and Plan of Merger is in effect on the date
of the Second Amendment to this Agreement.
"(e) 'Merger Sub' shall mean Luke Acquisition Corp., a
Delaware corporation.
"(f) 'Santera' shall mean Santera Systems Inc., a Delaware
corporation."
(b) Subsection 1.3 of the Agreement is hereby amended to read in full
as follows:
"1.3 PURPOSE OF LOAN. The proceeds of the Revolving Loan shall
be used for Borrower's general corporate purposes, including acquisitions and
working capital. Without limiting the generality of the foregoing sentence,
Borrower agrees that it shall not use the proceeds of the Revolving Loan to make
any loan or advance to, or any investment in, Santera."
(c) Subsection 2.2 of the Agreement is hereby amended to read in full
as follows:
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"2.2 GUARANTIES. IEX Corporation, a Nevada corporation
(`Guarantor'), shall have executed and delivered to Bank a continuing guaranty
in form and amount satisfactory to Bank. In addition, any and all future
domestic subsidiaries of Borrower shall promptly execute and deliver to Bank
continuing guaranties in form and amount satisfactory to Bank. Notwithstanding
the foregoing, neither Santera nor Merger Sub shall be required to execute and
deliver a continuing guaranty to Bank hereunder."
(d) Subsection 5.1 of the Agreement is hereby amended to read in full
as follows:
"5.1 LIENS. Borrower will not, and will not permit any of its
subsidiaries to create, assume or permit to exist any Lien on any of its
property, whether real, personal or mixed, now owned or hereafter acquired, or
upon the income or profits thereof, except for (a) Liens, if any, in favor of
Bank, (b) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or similar legislation, (c) Liens
created to secure indebtedness permitted by subsection 5.2(c) hereof, which is
incurred solely for the purpose of financing the acquisition of such assets and
incurred at the time of acquisition, so long as each such Lien shall at all
times be confined solely to the asset or assets so acquired (and proceeds
thereof), and refinancings thereof so long as any such Lien remains solely on
the asset or assets acquired and the amount of such indebtedness related thereto
is not increased, (d) minor encumbrances and easements on real property which do
not affect its market value, (e) Liens for taxes not delinquent and for taxes
and other items being contested in good faith, (f) Liens on personal property in
existence on the date of this Agreement, (g) Liens in respect of judgments or
awards for which appeals or proceedings for review are being prosecuted and in
respect of which a stay of execution upon any such appeal or proceeding for
review shall have been secured, provided that (i) Borrower or such subsidiary
shall have established adequate reserves for such judgments or awards, (ii) such
judgments or awards shall be fully insured and the insurer shall not have denied
coverage, or (iii) such judgments or awards shall have been bonded to the
satisfaction of Bank, and (h) all "Permitted Liens" (as defined in the Merger
Agreement) set forth on Schedule 1.1E (Part 2) to the Merger Agreement,
including without limitation all Permitted Liens in favor of Comerica
Bank-California, Comdisco, Inc. or Third Coast Capital, provided that such Liens
secure indebtedness of Santera permitted under subsection 5.2 hereof.
(e) Subsection 5.2 of the Agreement is hereby amended to read in full
as follows:
"5.2 INDEBTEDNESS. Borrower will not sell, discount or
otherwise transfer any account receivable or any note, draft or other evidence
of indebtedness, except to Bank or except to a financial institution at face
value for deposit or collection purposes only and without any fee other than
fees normally charged by the financial institution for deposit or collection
services. Borrower will not, nor shall it permit any subsidiary to create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, or suffer to exist any indebtedness, except (a) indebtedness
under this Agreement and the Loan Documents, (b) accounts payable
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and accrued liabilities incurred in the ordinary course of business, (c)
indebtedness, including in respect of capitalized lease obligations, incurred to
purchase, or to finance the purchase of, assets which constitute property, plant
and equipment, in an aggregate principal amount not in excess of Twenty Million
Dollars ($20,000,000), (d) interest hedging obligations under interest hedge
agreements entered into with Bank or any other financial institution, (e)
obligations under foreign exchange hedge agreements entered into with Bank or
any other financial institution, (f) indebtedness existing on the date of this
Agreement (including overdraft lines for Borrower's Japanese subsidiary), or
permitted to be incurred under agreements existing on the date of this
Agreement, including renewals, replacements and refinancings (but no increases)
thereof, (g) indebtedness in respect of endorsement of negotiable instruments in
the ordinary course of business, (h) indebtedness owing to Borrower or any of
its subsidiaries by any subsidiary of Borrower which has executed a continuing
guaranty in favor of Bank as provided for herein, (i) guaranties by subsidiaries
of Borrower of indebtedness of Borrower or other subsidiaries of Borrower, to
the extent such underlying indebtedness is permitted hereunder, and (j) secured
indebtedness of Santera under any "Material Santera Contracts" (as defined in
the Merger Agreement) set forth on Schedule 4.15(a)(iii) to the Merger
Agreement, including without limitation any secured indebtedness to Comerica
Bank-California (or any successor thereto with respect to such indebtedness),
Comdisco, Inc. and Third Coast Capital."
3. CONSENT TO TRANSACTIONS. Bank hereby consents to the consummation by
Borrower of the Transactions in accordance with the terms and conditions of the
Merger Agreement and the related agreements and documents referenced therein.
Without limiting the generality of the foregoing, Bank hereby agrees that, for
purposes of the Agreement, (a) the contribution of the Contributed Assets to
Merger Sub pursuant to the Merger Agreement will constitute a permitted sale,
transfer or other disposition by Borrower, (b) the contribution by Borrower to
Merger Sub of Twenty-Eight Million Dollars ($28,000,000) pursuant to the Merger
Agreement will constitute a permitted investment by Borrower, (c) the merger of
Merger Sub into Santera will constitute a permitted merger of a subsidiary of
Borrower, (d) the acquisition of Santera's capital stock at the "Effective Time"
(as defined in the Merger Agreement) pursuant to the Merger Agreement will
constitute a permitted acquisition and investment by Borrower, and (f) any
acquisition, after the Effective Time, by Borrower pursuant to the Stockholders
Agreement of shares of Santera capital stock from Santera, for a purchase price
of up to Twelve Million Dollars ($12,000,000), or from the other stockholders of
Santera, for a purchase price determined in accordance with the provisions of
the Stockholders Agreement, will constitute a permitted acquisition and
investment by Borrower. Bank also hereby further consents to Borrower's
contribution or payment to, or investment in, Santera, following the Effective
Time and pursuant to any one or more transactions, of an additional aggregate
amount of up to Ten Million Dollars ($10,000,000), and Bank specifically
acknowledges that such contributions, payments and/or investments shall be in
addition to the Transactions.
4. CERTAIN DELIVERIES BY BORROWER. On or prior to the date hereof, Bank
shall have received all of the following, in form and substance satisfactory to
Bank:
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(a) A counterpart of this Second Amendment, duly executed by Borrower
and acknowledged by Guarantor where indicated hereinbelow;
(b) A fee in connection with the consent granted pursuant to this
Second Amendment and the preparation of this Second Amendment in the sum of Five
Thousand Dollars ($5,000), which fee shall be nonrefundable; and
(c) Such other documents, instruments or agreements as Bank may
reasonably deem necessary.
5. RELEASE OF SECURITY INTEREST IN CONTRIBUTED ASSETS. Bank hereby agrees
that, upon contribution of the Contributed Assets to Merger Sub in accordance
with the terms of the Merger Agreement, the Contributed Assets shall no longer
(a) be subject to Bank's security interest, (b) be covered by any security
agreement previously executed by Borrower in favor of Bank, or (c) be covered by
any UCC-1 financing statement previously filed by Bank.
6. PLEDGE OF INVESTMENT SECURITIES. As soon as possible, but in no event
later than the date that is ninety (90) days after the Closing Date (as such
term is defined in the Merger Agreement), Borrower shall (a) execute and deliver
to Bank a Security Agreement (Investment Securities), on Bank's standard form
therefor, pursuant to which, among other things, Borrower shall pledge to Bank,
and grant to Bank a first priority security interest in, all of Borrower's
right, title and interest in and to the capital stock of Santera issued to
Borrower at the Effective Time pursuant to the terms of the Merger Agreement,
(b) deliver to Bank the original stock certificates of Santera acquired by
Borrower pursuant to the Merger Agreement and (c) deliver to Bank blank stock
powers, executed by Borrower, describing such capital stock of Santera.
7. RATIFICATION.
(a) Except as specifically amended hereinabove, the Agreement shall
remain in full force and effect and is hereby ratified and confirmed; and
(b) Upon the effectiveness of this Second Amendment, each reference in
the Agreement to "this Agreement", "hereunder", "herein" or words of like import
referring to the Agreement shall mean and be a reference to the Agreement as
amended by this Second Amendment.
8. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants as
follows:
(a) Each of the representations and warranties contained in Section 3
of the Agreement, as amended hereby, is hereby reaffirmed as of the date hereof,
each as if set forth herein;
(b) The execution, delivery and performance of this Second Amendment
are within Borrower's corporate power, have been duly authorized, are legal,
valid and binding obligations of Borrower, and are not in conflict with the
terms of the articles of
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incorporation or any other organizational papers of Borrower or with any law,
indenture, agreement or undertaking to which Borrower is a party or by which
Borrower is bound or affected;
(c) This Second Amendment is the legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms; and
(d) Except for any matters with respect to which Bank has granted its
consent as provided herein, no event has occurred and is continuing or would
result from this Second Amendment which constitutes an Event of Default under
the Agreement, or would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
9. GOVERNING LAW. This Second Amendment and all other instruments or
documents executed in connection herewith shall be governed by, and construed in
accordance with, the laws of the State of California.
10. COUNTERPARTS. This Second Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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WITNESS the due execution hereof as of the date first above written.
"Borrower"
TEKELEC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
President and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and General Counsel
"Bank"
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇
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Title: Vice President
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Acknowledgment of Guarantor
The undersigned, as Guarantor pursuant to that certain Continuing
Guaranty dated as of July 31, 2000 (the "Guaranty"), hereby consents to the
foregoing Second Amendment and acknowledges and agrees, without in any manner
limiting or qualifying its obligations under the Guaranty, that payment of the
Obligations (as such term is defined in the Guaranty) and the punctual and
faithful performance, keeping, observance and fulfillment by Borrower of all of
the agreements, conditions, covenants and obligations of Borrower contained in
the Agreement are and continue to be unconditionally guaranteed by the
undersigned pursuant to the Guaranty.
"Guarantor"
IEX CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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