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EXHIBIT 99.8.7
ASSUMPTION AGREEMENT
WHEREAS, GMAC Commercial Credit LLC, (as "Agent" and "Lender"), as
successor-by-merger to BNY Financial Corporation which was the successor in
interest to The Bank of New York Commercial Corporation and Fleet Bank, N.A. (as
"Lender"), presently provide financing to Jaco Electronics, Inc. ("Jaco") and
Nexus Custom Electronics, Inc. ("Nexus"), (jointly and severally the "Debtor")
pursuant to a Second Restated and Amended Loan and Security Agreement dated
September 13, 1995, as supplemented and amended from time to time (the
"Agreement"). Initially capitalized terms not otherwise defined herein shall
have such meaning ascribed to such terms under the Agreement; and
WHEREAS, Interface Electronics Corp. ("Interface") is a newly acquired
subsidiary of Jaco; and
WHEREAS, the Debtor is desirous of having Interface become an additional
borrower under the terms of the Agreement, and become a party, jointly and
severally, of the defined term "Debtor" under the Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt whereof
is hereby acknowledged, it is hereby agreed by and between the undersigned as
follows:
1. Interface shall become a borrower under the Agreement and be
included in the term "Debtor", and thereby become, jointly and
severally liable for all Obligations, including all Loans under
the Agreement, and a party to the Agreement and all of the
ancillary agreements relating to the Agreement and executed by
Jaco and Nexus which are still in effect, as they may apply to
Interface as an integrated party into the term "Debtor", in the
same manner and effect, and to the same extent as if Interface was
an original signatory as Debtor under the Agreement. Any
references to "Debtor" under the Agreement shall henceforth be
deemed to include Jaco, Nexus and Interface upon the effective
date of this Assumption Agreement.
2. By execution of this Agreement each of Jaco, Nexus and Interface
hereby ratify, and assume, jointly and severally, each and every
Obligation (as that term is defined in the Agreement, including
but not limited to, all Loans and extensions of credit made to the
Debtor under the Agreement), to the same extent as if they were
all original signatories thereof. By their signatures below, Jaco,
Nexus and Interface agree that all outstanding Obligations under
the Agreement are their valid and binding obligations and that
they are jointly and severally liable for any such outstanding
Obligations and thereby promise to pay all such Obligations
together with applicable interest to the Lenders in accordance
with the terms of the Agreement.
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3. Interface hereby irrevocably authorizes Jaco to act as its agent
in connection with any and all requests for Loans, receipt of
advances and any other communications between Debtor and Lender
under the Agreement in the same manner and to the same extent as
if Interface had made any such requests or received any such
advances.
4. Jaco and Interface represent and warrant to the Lender that as of
the time of execution of this Assumption Agreement, Interface has
become a wholly owned subsidiary of Jaco.
IN WITNESS WHEREOF, the parties hereto have executed this Assumption
Agreement on June 6, 2000.
JACO ELECTRONICS, INC.
By: /s/ Joel Girsky
----------------------------
Title: President
NEXUS CUSTOM ELECTRONICS, INC.
By: /s/ Joel Girsky
----------------------------
Title: President
INTERFACE ELECTRONICS CORP.
By: /s/ Joel Girsky
----------------------------
Title: President
ACCEPTED AND AGREED:
GMAC COMMERCIAL CREDIT LLC
(as Agent and Lender)
By: /s/ Daniel J. Murray
-----------------------------
Title: Senior Vice President
FLEET BANK, N.A.
(as Lender)
By: /s/ Alice Adelberg
-----------------------------
Title: Vice President
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CONSENT AND RATIFICATION OF GUARANTEES AND INCLUSIONS OF
INTERFACE ELECTRONICS CORP. INTO THE SECOND RESTATED AND
AMENDED LOAN AND SECURITY AGREEMENT DATED SEPTEMBER 13, 1995,
AS SUPPLEMENTED AND AMENDED FROM TIME TO TIME
(THE "AGREEMENT")
The undersigned, in order to induce the Lender to accept Interface Electronics
Corp. ("Interface") as an additional borrower, to be integrated in the
definition as "Debtor" under the Agreement, and to extend Loans and other credit
facilities to Interface, all as more fully described in the Assumption
Agreement, stated immediately hereinabove, hereby ratify each of the
"Guaranties" presently existing and previously ratified under a certain Letter
Agreement dated September 6, 1995, executed by each of the undersigned and
addressed to The Bank of New York Commercial Corporation, predecessor in
interest to BNY Financial Corporation, which was incorporated by merger into
GMAC Commercial Credit LLC ("GMAC"). The undersigned hereby further state that
such Guaranties shall remain in full force and effect, guaranteeing all
Obligations (including, but not limited to all Loans and other extensions of
credit under the Agreement), of the Debtor to the Lenders, including but not
limited to, all Obligations of Interface by reason of its assumption of
Obligations under and inclusion into the Agreement as Debtor, and the terms of
each of the Guaranties are hereby amended to include, without limitation, the
unconditional guaranty of the due payment of all indebtedness, liabilities and
Obligations, whether now existing, or hereafter arising of Jaco Electronics,
Inc., Nexus Custom Electronics, Inc. and Interface Electronics Corp. to GMAC as
Agent and Lender, and Fleet Bank, N.A. as Lender, and except as hereby modified
or previously modified, the Guaranties shall remain in full force and effect in
accordance with their terms.
DISTEL, INC. QUALITY COMPONENTS, INC.
By: /s/ Joel Girsky By: /s/ Joel Girsky
-------------------------------- --------------------------
Title: President Title: President
JACO OVERSEAS, INC. R.C. COMPONENTS, INC.
By: /s/ Joel Girsky By: /s/ Joel Girsky
-------------------------------- -------------------------
Title: President Title: President
MICATRON, INC. NEXUS CUSTOM ELECTRONICS, INC.
By: /s/ Joel Girsky By: /s/ Joel Girsky
------------------------------ --------------------------
Title: President Title: President
ACCEPTED AND AGREED TO:
GMAC COMMERCIAL CREDIT LLC FLEET BANK, N.A.
(as Agent and Lender) (as Lender)
By: /s/ Daniel J. Murray By: /s/ Alice Adelberg
------------------------------ --------------------------
Title: Senior Vice President Title: Vice President
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GMAC COMMERCIAL CREDIT LLC
GENERAL SECURITY AGREEMENT
In consideration of loans, credit or other financial accommodation extended or
continued from time to time to, or on the guaranty, endorsement or other
assurance of, the undersigned ("Obligor") by GMAC Commercial Credit LLC
("GMAC"), Obligor hereby agrees as follows:
1. SECURITY INTEREST.
a. To secure the payment and performance of all of the Obligations,
Obligor hereby grants to GMAC a continuing security interest in, and
assigns and pledges to GMAC, the Collateral.
b. (i) "Collateral" shall mean and include (A) all property listed in
Schedule A hereto, (B) if such property includes any instruments, all
Instrument Collateral, (C) the proceeds, products and accessions
thereof and thereto and (D) all replacements and substitutions
therefor.
(ii) "Obligations" shall mean and include all indebtedness,
liabilities, obligations, covenants and duties of Obligor and of Jaco
Electronics, Inc. and Nexus Custom Electronics, Inc. to GMAC as Agent
and any other Lender (as such terms are defined in a Second Restated
Loan and Security Agreement dated September 13, 1995, as amended,
modified and supplemented from time to time, hereinafter referred to
as the "Agreement") party to the Agreement, or any Affiliate of GMAC
(including those which GMAC or such Affiliate may have acquired from
others) of every kind, nature and description, direct or indirect,
absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise,
now existing or hereafter arising, and whether or not evidenced by
any note or other instrument or agreement and whether or not for the
payment of money, including, but not limited to, indebtedness,
obligations, (including but not limited to all Obligations under the
Agreement), and liabilities to GMAC or such Affiliate of Obligor as a
member of any partnership, syndicate, association or other group, or
as a guarantor of the Obligations of any other entity to GMAC or such
affiliate.
(iii) Affiliate, Instrument Collateral and certain other terms used
herein are defined in Section 13 hereof.
2. RANK AND PERFECTION OF SECURITY INTEREST.
a. Obligor will not grant or permit to exist, nor shall there exist, any
security interest in, lien, attachment, levy or encumbrance upon, or
assignment or pledge as security of, any of the Collateral, except
the security interest of and assignment and pledge to GMAC hereunder
and Permitted Liens.
b. (i) Obligor will take all action requested by GMAC, or which may
be necessary or desirable, to perfect, continue, evidence,
preserve, protect or validate the security interest of and
assignment and pledge to GMAC hereunder or to enable GMAC to
exercise and enforce its rights hereunder, including, but not
limited to, (A) executing and delivering one or more notices,
statements, agreements or other writings, and (B) delivering to
GMAC, and stamping or otherwise marking, in such manner as GMAC
may specify, any and all chattel paper, instruments, letters and
advices of credit and documents constituting part of the
Collateral, in each case endorsed or accompanied by such
instruments of assignment as GMAC may specify. (ii) Obligor hereby
authorizes GMAC, at its option but without any obligation so to
do, to file financing and continuation statements and amendments
to financing statements, naming Obligor as debtor, with respect to
any of the Collateral without the signature of Obligor, and agrees
that a carbon, photographic or other reproduction of this
Agreement or of a financing statement is sufficient as a financing
statement.
3. COVENANTS RELATING TO COLLATERAL. Obligor covenants that:
<PAGE> 5
a. It shall at all times: (i) be the sole owner of each and every item
of Collateral, (ii) defend the Collateral against the claims and
demands of all persons and (iii) in the case of tangible property
constituting part of the collateral, (A) properly maintain and
keep in good order and repair such property and (B) keep such
property fully insured with responsible companies acceptable to
GMAC against such risks as such Collateral may be subject to, or
as GMAC may request, under policies containing loss payable
clauses naming GMAC as loss payee as its interests may appear and
otherwise in form and substance satisfactory to GMAC, and
providing that: (1) all proceeds thereof shall be payable to GMAC;
(2) such insurance shall not be affected by any act or neglect of
Obligor or other owner of the property described in such policy;
and (3) such policy and loss payable clause may not be canceled or
amended except upon ten days' prior written notice to GMAC;
b. It will comply with the requirements of all leases, mortgages and
other instruments relating to premises where any Collateral is
located;
c. It will not sell or otherwise dispose of any of the Collateral,
except that, if the same constitute Collateral, (i) accounts may be
collected in the ordinary course of business and (ii) inventory or
farm products may be sold in the ordinary course of business.
d. It will give GMAC prompt notice of (i) any change in (A) its name,
identity or corporate structure, (B) the location of its chief
executive office or any other place of business, or (C) the location
of any of the Collateral or its books and records concerning any
accounts, (ii) the location of each new place of business opened by
Obligor, (iii) each new location of any Collateral, and (iv) any
substantial loss or depreciation in the value of any of the
Collateral, and will provide GMAC with such other information as to
the Collateral as GMAC may request.
e. It will (i) whether or not GMAC shall have exercised its rights under
Section 4(b) (iii) hereof, receive and hold all Distributions (other
than Ordinary Distributions GMAC has released pursuant to the
provisions of Section 4(c) hereof) and other Instrument Collateral in
trust for GMAC, and not commingle the same with any of its other
funds or property and immediately deliver the same to GMAC in the
identical form received and (ii) give GMAC copies of all notices and
other communications received by Obligor with respect to any
instruments registered in the name of Obligor constituting part of
the Collateral.
4. PRE-EVENT OF DEFAULT RIGHTS.
a. At any time and from time to time: (i) GMAC may and is hereby
authorized to transfer into or register in the name of itself or its
nominee any instruments or documents constituting a part of the
Collateral without notice to Obligor; (ii) with respect to
instruments, if any, constituting part of the Collateral that are
registered in the name of GMAC, GMAC may receive and retain all
Distributions, other than Ordinary Distributions that GMAC has
released pursuant to Section 4(c); and (iii) Obligor will: (A) permit
representatives of GMAC during normal business hours to inspect its
premises and books and records pertaining to the Collateral and make
extracts from such books and records; and (B) upon request, enter
into warehousing, lockbox or other custodial arrangements
satisfactory to GMAC.
b. Should GMAC at any time and for any reason deem itself to be insecure
or the risk of non-payment or non-performance of any of the
obligations increased: (i) with respect to instruments, if any,
constituting part of the Collateral, GMAC may, by notice to
Obligor, terminate Obligor's rights under Section 4(c) hereof (in
which case GMAC's release pursuant to such Section of any and all
Ordinary Distributions shall thereupon be automatically revoked)
and, in its own or Obligors name, exercise any and all powers with
respect to such instruments with the same force and effect as
could Obligor; (ii) GMAC may, without notice to Obligor: (A) if
the Collateral consists in whole or in part of accounts of or
other claims or rights of Obligor (including accounts, claims and
rights which are Collateral by reason of their constituting
proceeds), notify the account debtors with respect to such
accounts, and all other persons against whom Obligor has such
claims or rights, of GMAC's rights hereunder, collect
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<PAGE> 6
all amounts payable with respect to such accounts, claims and
rights directly and apply such collections to the repayment of the
Obligations in such order as it may elect; (B) in its own or
Obligors name, demand, sue for, collect or receive any money or
property payable or receivable on account of or in exchange for,
make any compromise or settlement with respect to, or modify any
of the terms of any of, the Collateral as GMAC may in its sole
discretion elect; (C) if the Collateral includes any of Obligors
accounts, receive and open mail addressed to Obligor and change
the address for delivery of Obligor's mail to an address
designated by GMAC and notify the postal authorities of any such
change; (D) in the name and on behalf of Obligor, endorse
instruments and other evidences of payment collected or received
by GMAC on account of the Collateral; and (E) appropriate and
hold, or apply (directly or by way of set-off) to the payment of
the Obligations (whether or not then due), all money of Obligor
then or thereafter in possession of GMAC, all amounts representing
Distributions then or thereafter in the possession of GMAC, the
balance of every deposit account (demand or time, matured or
unmatured) of Obligor then or thereafter with GMAC and every other
claim of Obligor then or thereafter against GMAC; and (iii)
Obligor will, upon request of GMAC: (A) receive and hold all
proceeds of Collateral in trust for GMAC and not commingle any
collections with any of its other funds; (B) immediately deliver
such collections to GMAC in the identical form received; and (C)
deliver to GMAC additional property as security for, or make one
or more payments on account of, the Obligations in an amount
satisfactory to GMAC.
c. Unless and until GMAC exercises its rights under Section 4(b)(i),
Obligor may, with respect to any instruments constituting part of
the Collateral, (i) collect and receive for its own use all
Ordinary Distributions (and for such purpose and to that extent,
GMAC hereby releases each such Distribution from the Collateral,
such release to be effective in the case of each Ordinary
Distribution at the time thereof); and (ii) vote and give
consents, ratifications and waivers with respect to such
instruments except to the extent that any such would, in the sole
judgment of GMAC, detract from the value of such instruments as
Collateral hereunder, and from time to time upon request from
Obligor, GMAC shall deliver to Obligor suitable assignments,
orders and proxies so that Obligor may receive such Distributions
and cast such votes, consents, ratifications and waivers; each
such request from Obligor shall constitute a representation and
warranty by Obligor hereunder that there is no reason at such time
for GMAC to deem itself to be insecure or the risk of non-payment
or non-performance of any of the Obligations to be increased.
d. GMAC may obtain the appointment of a receiver of any of the
Collateral and Obligor waives any right to notice of and consents
to such appointment.
5. EVENTS OF DEFAULT.
a. It shall be an Event of Default if: (i) Obligor defaults in the
payment when due of any of the Obligations; (ii) Obligor otherwise
defaults in the performance of any of the Obligations, (iii) any
representation or warranty made by Obligor to GMAC hereunder or in
connection with any of the other Obligations proves to have been
incorrect or misleading in any material respect when made; (iv)
Obligor fails to pay when due any other indebtedness for borrowed
money, the maturity of any such indebtedness is accelerated or an
event occurs which, with notice or lapse of time or both, would
permit acceleration of such indebtedness; (v) Obligor (if an
individual) or any Individual Guarantor dies or becomes
incompetent, or any Guarantor challenges, or institutes any
proceedings, or any proceedings are instituted, to challenge, the
validity, binding effect or enforceability of this Agreement; (vi)
Obligor (if a business entity) or any Guarantor (if a business
entity) is dissolved or is a party to any merger or consolidation
or sells or otherwise disposes of all or substantially all of its
assets without the written consent of GMAC; (vii) any Guarantor
creates a security interest in or lien upon, or an attachment or
levy is made upon, any assets of such Guarantor, or a judgment is
rendered against any Guarantor or against Obligor; (viii) Obligor
or any Guarantor becomes insolvent or unable to meet its debts as
they mature, or is generally not paying its debts as they become
due, or suspends or ceases its present business, or a custodian,
as defined in Title 11 of the United States Code, of substantially
all of its property shall have been appointed or taken possession;
(ix) a case
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under such Title 11, or any proceeding under any other federal or
state bankruptcy, insolvency or other law related to the relief of
debtors, the readjustment, composition or extension of
indebtedness or reorganization, is commenced by or against Obligor
or any Guarantor; (x) Obligor or any Guarantor makes any payment
on account of any Indebtedness subordinated to any of the
Obligations in contravention of the terms of such subordination;
(xi) Obligor or any copartnership of which Obligor is a member is
expelled from or suspended by any stock or securities exchange or
other exchange; or (xii) an Event of Default shall occur under the
terms of the Agreement.
b. The occurrence of an Event of Default shall be conclusively presumed
to have increased the risk of non-payment or non-performance of the
Obligations, and GMAC shall be conclusively presumed, thereupon, to
have deemed itself to be insecure.
6. POST-EVENT OF DEFAULT RIGHTS. Upon the occurrence of an Event of
Default and at any time or from time to time thereafter:
a. In the case of any Event of Default, other than an Event of Default
referred to in clause (viii) or(ix) of paragraph (a) of Section 5,
GMAC may declare, by notice to Obligor, any and all of the
Obligations immediately due and payable, and, in the case of any
Event of Default referred to in clause (viii) or (ix) of paragraph
(a) of Section 5, all of the Obligations shall automatically be and
become due and payable, in either case without any other presentment,
demand, protest or notice of any kind, anything in any other
agreement to the contrary notwithstanding;
b. GMAC shall have no obligation to make further loans, extensions of
credit or other financial accommodations to or on behalf of
Obligor, anything in any other agreement to the contrary
notwithstanding;
c. GMAC may exercise all other rights to which it is entitled hereunder,
including but not limited to those specified in Section 4 hereof;
d. Obligor shall, upon request of GMAC, assemble the Collateral and
maintain or deliver it into the possession of GMAC at such place
or places as GMAC may designate and as are reasonably convenient
to both GMAC and Obligor;
e. GMAC may (i) without notice, demand or other process, and without
charge, enter any of Obligor's premises and, without breach of the
peace, until GMAC completes the enforcement of its rights in the
Collateral, take possession of such premises or place custodians in
exclusive control thereof, remain on such premises and use the same
and any of Obligor's equipment for the purpose of completing any
work-in-process, preparing any Collateral for disposition and
disposing of or collecting any Collateral, and (ii) in the exercise
of its rights under this Agreement, without payment of compensation
of any kind, use any and all trademarks, trade styles, trade names,
patents, patent applications, licenses, franchises and the like to
the extent of Obligor's rights therein and Obligor hereby grant a
license for that purpose; and
f. If the Collateral consists in whole or in part of instruments and
GMAC elects to sell or otherwise dispose of such instruments, (i)
Obligor will, if it controls the issuer of such instruments, or if
it otherwise has the right to effect such registration, and if
GMAC deems such registration to be desirable, cause such
instruments to be registered under the Securities Act of 1933, as
amended, and take all other action, including but not limited to
complying with the "blue sky" or securities laws of the several
states and delivering to GMAC appropriate quantities of
prospectuses, necessary or appropriate so as to permit the public
sale of other disposition thereof by GMAC in such jurisdictions as
GMAC may select, and indemnify, in the form then customary, all
persons who are underwriters, statutory or otherwise, of such
instruments in connection with such sale or disposition, such
indemnity, to the extent applicable to GMAC, to be in addition to
that afforded GMAC under Section 8(c) hereof, and (ii) GMAC may
elect not to exercise its rights under clause (i) and in that
event may,
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if in its judgment it shall be necessary or desirable so to do,
restrict the number of prospective bidders so as to comply with
the provisions of Section 5 of such Securities Act, and restrict
such prospective bidders to persons who will represent and agree
that they are purchasing the instruments in question for their own
account for investment and not with a view to the distribution or
resale of any thereof and who will further agree that such
instruments purchased by them may bear an appropriate restrictive
legend to that effect.
7. GENERAL REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Obligor hereby
represents, warrants and agrees that:
a. The execution, delivery and performance of this Agreement are within
its powers, corporate or otherwise, have been duly authorized by all
required action and do not and will not contravene any law or any
agreement or undertaking to which it is a party or by which it may in
any way be bound or, if Obligor is a corporation, its certificate of
incorporation or bylaws;
b. Obligor will furnish GMAC with all information concerning its
business and financial condition as GMAC may request; and
c. Each of the representations and warranties contained in the
Questionnaire, if any, submitted to GMAC by Obligor in connection
with this Agreement is true and correct on the date hereof as if made
on the date hereof and all other information, including financial
statements and projections, furnished to GMAC at any time by or on
behalf of Obligor was and will be complete and correct in all
material respects to the extent necessary for the purpose of
presenting the subject matter thereof fairly to GMAC.
8. EXPENSES OF OBLIGOR'S DUTIES; GMAC'S RIGHT TO PERFORM ON OBLIGOR'S
BEHALF; GMAC'S EXPENSES AND INDEMNIFICATION.
a Obligor's agreements and duties hereunder shall be performed by it at
its sole cost and expense.
b. If Obligor shall fail to do any act or thing which it has covenanted
to do hereunder, GMAC may (but shall not be obligated to ) do the
same or cause it to be done, either in its name or in the name and on
behalf of Obligor, and Obligor hereby irrevocably authorizes GMAC so
to act.
c. Obligor agrees to reimburse GMAC for all costs and expenses,
including attorney's fees and disbursements, incurred, and to
indemnify and hold GMAC harmless from and against all losses
suffered, by GMAC in connection with (i) GMAC's exercise of any right
or remedy granted to it hereunder, (ii) any claim and the prosecution
or defense thereof arising out of or in any way connected with this
Agreement, and (iii) the collection or enforcement of the
Obligations.
d. Amounts payable by Obligor under this Section 8 shall constitute
Obligations which shall be payable on demand.
9. NO WAIVERS OF RIGHTS HEREUNDER; RIGHTS CUMULATIVE.
a. No delay by GMAC in exercising any right hereunder, or under any of
the other Obligations, shall operate as a waiver thereof, nor shall
any single or partial exercise of any right preclude other or further
exercises thereof or the exercise of any other right. No waiver of
any of the other Obligations shall be enforceable against GMAC unless
in writing and signed by an officer of GMAC, and unless it expressly
refers to the provision affected; any such waiver shall be limited
solely to the specific event waived.
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b. All rights granted GMAC hereunder shall be cumulative and shall be
supplementary of and in addition to those granted or available to
GMAC with respect to the other Obligations or under applicable law
and nothing herein shall be construed as limiting any such other
right.
10. ASSIGNMENT; PARTICIPATIONS.
a. GMAC may assign any or all of the Obligations and may transfer
therewith any or all of the Collateral therefor and the transferee
shall have the same rights with respect thereto as had GMAC. Upon
such transfer, GMAC shall be released from all responsibility for the
Collateral so transferred.
b. GMAC may from time to time sell or otherwise grant participation in
any of the Obligations and the holder of any such participation
shall, subject to the terms of any agreement between GMAC and such
holder, be entitled to the same benefits with respect to any
Collateral for the Obligations in which such holder is a participant
as GMAC. Obligor agrees that each such holder may exercise any and
all rights of banker's lien, set-off and counterclaim with respect to
its participation in the Obligations as fully as though Obligor were
directly indebted to such holder in the amount of such participation.
11. CONTINUING AGREEMENT; TERMINATION.
a. This Agreement shall be a continuing agreement and shall apply to all
future Obligations notwithstanding that at any particular time all of
the Obligations then outstanding shall have been paid in full.
b. This Agreement shall continue in full force and effect until written
notice of termination shall have been received by GMAC at its address
stated below, but, notwithstanding any such notice, this Agreement
shall continue in full force and effect until all Obligations then
outstanding (whether absolute or contingent) shall have been paid in
full and all rights of GMAC hereunder shall have satisfied or other
arrangements for the securing of such rights satisfactory to GMAC
shall have been made. Upon receipt of any such notice, GMAC shall
have no obligation to make further loans, extensions of credit or
other financial accommodations to or on behalf of Obligor, anything
in any other agreement to the contrary notwithstanding.
12. GOVERNING LAW; JURISDICTION; CERTAIN WAIVERS.
a. This agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of New York, and GMAC shall
have the rights and remedies of a secured party under applicable law,
including but not limited to the Uniform Commercial Code of New York.
b. Obligor agrees that all actions and proceedings relating directly or
indirectly to this Agreement or any of the other Obligations shall be
litigated in courts located within the State of New York or elsewhere
as GMAC may select and that such courts are convenient forums and
submits to the personal jurisdiction of such courts.
c. Obligor waives personal service of process and consents that service
of process upon it may be made by certified or registered mail,
return receipt requested, directed to Obligor at its address last
specified for notices hereunder, and service so made shall be deemed
completed two days after the same shall have been so mailed.
d. Obligor waives the right to a trial by jury in any action or
proceeding between it and GMAC and waives the right to assert in any
action or proceeding with regard to this Agreement or any of the
Obligations any offsets or counterclaims which it may have.
e. GMAC shall not be required to take any steps necessary to preserve
rights against prior parties.
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13. DEFINITIONS. As used herein:
a. All terms defined in Article 1 or 9 of the New York Uniform
Commercial Code as in effect on the date of this Agreement (other
than the term "Collateral") are used herein (including in Schedule A
hereto) with the meanings therein given; such terms include but are
not limited to "account," "chattel paper," "deposit account,"
"document," "equipment," "general intangibles," "goods,"
"instrument," "inventory," "money," and "security interest."
b. The following terms shall have the indicated meanings: "AFFILIATE" of
GMAC shall mean a corporation that directly or indirectly controls
or is controlled by, or is under common control with, GMAC.
"DISTRIBUTIONS" shall mean Ordinary Distributions and
Extraordinary Distributions; "Ordinary Distributions" shall mean
cash dividends to the extent paid out of retained earnings, and
interest paid in cash, in each case with respect to all
instruments constituting part of the Collateral, except to the
extent that any such dividend is made in connection with a partial
or total liquidation or a reduction of capital, or any such
interest is penalty interest, or, in each case, to the extent the
same is not in the ordinary course; and "EXTRAORDINARY
DISTRIBUTIONS" shall mean all dividends, interest and
distributions on or in respect of and all proceeds of such
instruments other than Ordinary Distributions.
"GUARANTOR" shall mean any maker, drawer, acceptor, endorser,
guarantor, surety, accommodation party or other person liable upon or
for any of the Obligations.
"INSTRUMENT COLLATERAL" shall mean (a) all Distributions on or in
respect of (i) the instruments listed in Schedule A, or (ii) any
instruments or property which constitute Instrument Collateral by
virtue of any provision of this definition (whether, in either case,
upon conversion of convertible securities included therein or through
stock split, spin-off, reclassification, merger, consolidation, sale
of assets, combination of shares or otherwise) and (b) all other
instruments and other property issued with respect to or in exchange
for (i) the instruments listed in Schedule A or (ii) any instruments
or other property which constitute Instrument Collateral by virtue of
any provision of this definition (whether, in either case, upon
conversion of convertible securities included therein or through
stock split, spin-off, reclassification, merger, consolidation, sale
of assets, combination of shares or otherwise).
"PERMITTED LIENS" shall mean (i) the lien of any real estate mortgage
in effect on the date of this Agreement to the extent that it is at
any time a lien on any Collateral that constitutes a "fixture"; (ii)
liens for taxes not yet due; (iii) other liens incurred in the
ordinary course of business that do not (a) arise under the Employee
Retirement Income Security Act of 1974 or (b) secure obligations
which are due and payable or obligations for borrowed money; (iv)
easements, rights-of-way and other similar encumbrances on real
property which do not interfere with the ordinary conduct of the
business of the Obligor; and (v) liens consented to by GMAC in
writing.
c. The words "it" or "its" as used herein shall be deemed to refer to
individuals and to business entities.
14. NOTICES.
Any notice or request hereunder may be given to Obligor or to GMAC at
their respective addresses set forth below or at such other address
as may hereafter be specified in a notice designated as a notice of
change of address under this Section. Any notice or request hereunder
may be given by, in the case of notices or requests to Obligor, mail,
telex or telegram, or by telephone subsequently confirmed by mail,
telex or telegram, and, in the case of notices to GMAC, registered
mail, return receipt requested, or by telex or telegram, subsequently
confirmed by such registered mail. Notices and requests to Obligor
shall, in the case of those by mail, telex or telegram, be deemed to
have been given when deposited in the mail, first-class postage
prepaid, or delivered to the telegraph office or telex operator,
addressed as provided in this Section, and in the case of those by
telephone, when
7
<PAGE> 11
so communicated to Obligor; notices to GMAC shall be deemed
to have been given only when actually received by GMAC at its
address determined as provided in this Section.
Any requirement under applicable law of reasonable notice by GMAC to
Obligor of any event shall be met if notice is given to Obligor in
the manner prescribed above at least seven days before (a) the date
of such event or (b) the date after which such event will occur.
15. GENERAL.
a If this Agreement is executed by two or more Obligors, they shall be
jointly and severally liable hereunder, all provisions hereof
regarding the Obligations or the Collateral shall apply to the
Obligations and Collateral of any or all of them and the termination
of this Agreement as to one or more of such Obligors shall not
terminate this Agreement as to any remaining Obligors.
b. This Agreement shall be binding upon the heirs, executors,
administrators, assigns or successors of each of the undersigned
Obligors and shall inure to the benefit of and be enforceable by
GMAC, its successors, transferees and assigns.
c. Any provision of this Agreement which 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 in that jurisdiction
affecting the validity or enforceability of such provision in any
other jurisdiction.
d. Notwithstanding anything the contrary herein, any reference to GMAC
herein shall be deemed to be a reference to GMAC, as Agent on behalf
of and for the benefit of the Lenders under the Agreement, and any
action taken by GMAC as Agent hereunder, shall be taken in accordance
with the terms and provisions of the Agreement. If there shall be any
discrepancy between the terms of the Agreement and the terms hereof,
the terms of the Agreement shall govern.
Dated June 6, 2000 in New York, New York
INTERFACE ELECTRONICS CORP.
By: /s/ Joel H. Girsky By:
------------------------------- ----------------------------------
Title: President Title:
124 Grove Street ----------------------------------
Franklin, MA 02028 ----------------------------------
[Address of Obligor] [Address of Obligor]
Accepted in New York, New York, on , 20
GMAC COMMERCIAL CREDIT, LLC. FLEET BANK, N.A.,
as Agent and Lender as Lender
By: /s/ Daniel J. Murray By: /s/ Alice Adelberg
-------------------------------- ----------------------------------
Title: Senior Vice President Title: Vice President
1290 Avenue of the Americas
8
<PAGE> 12
New York, NY 10104
9
<PAGE> 13
SCHEDULE A
The following property constitutes part of the "Collateral":
ALL ACCOUNT RECEIVABLES, INVENTORY AND EQUIPMENT NOW OWNED OR HEREAFTER
ACQUIRED BY OBLIGOR, AS DEFINED BELOW:
"ACCOUNTS RECEIVABLE" SHALL MEAN AND INCLUDE ALL OF THE FOLLOWING:
ALL PRESENT AND FUTURE ACCOUNTS, CONTRACT RIGHTS, CHATTEL PAPER,
DOCUMENTS, INSTRUMENTS AND GENERAL INTANGIBLES AS SAID TERM IS DEFINED IN THE
UNIFORM COMMERCIAL CODE INCLUDING, WITHOUT LIMITATION, TRADEMARKS, TRADENAME,
TRADESTYLES, TRADE SECRETS, EQUIPMENT FORMULATION, MANUFACTURING PROCEDURES,
QUALITY CONTROL PROCEDURES, PRODUCT SPECIFICATIONS, PATENTS, PATENT
APPLICATIONS, COPYRIGHTS, REGISTRATIONS, CONTRACT RIGHTS, CHOSES IN ACTION,
CAUSES OF ACTION, CORPORATE OR OTHER BUSINESS RECORDS, INVENTIONS, DESIGNS,
GOODWILL, CLAIMS UNDER GUARANTEES, LICENSES, FRANCHISES, TAX REFUNDS, TAX REFUND
CLAIMS, COMPUTER PROGRAMS, COMPUTER DATABASES, COMPUTER PROGRAM FLOW DIAGRAMS,
SOURCE CODES, OBJECT CODES AND ALL OTHER INTANGIBLE PROPERTY OF EVERY KIND AND
NATURE; GOODS REPRESENTED BY ANY OR ALL OF THE FOREGOING AND MERCHANDISE
RETURNS; BOOKS AND RECORDS PERTAINING TO THE FOREGOING AND EQUIPMENT CONTAINING
SAME, WHEREVER LOCATED; AND ALL PROCEEDS OF ALL OF THE FOREGOING.
"INVENTORY" SHALL MEAN AND INCLUDE ALL OF THE FOLLOWING:
ALL PRESENT AND HEREAFTER ACQUIRED INVENTORY, AS DEFINED IN THE UNIFORM
COMMERCIAL CODE, WHEREVER LOCATED, INCLUDING BUT NOT LIMITED TO RAW MATERIALS,
WORK IN PROCESS AND FINISHED GOODS; ALL PROCEEDS AND PRODUCTS OF THE FOREGOING;
AND ALL DOCUMENTS OF TITLE EVIDENCING ANY OF THE FOREGOING.
"EQUIPMENT" SHALL MEAN AND INCLUDE ALL OF THE FOLLOWING:
ALL PRESENT AND HEREAFTER ACQUIRED EQUIPMENT, AS DEFINED IN THE UNIFORM
COMMERCIAL CODE, WHEREVER LOCATED; AND PROCEEDS OF THE FOREGOING.
10
<PAGE> 14
[Letterhead of GMAC]
June 6, 2000
JACO ELECTRONICS, INC. ("Jaco")
145 Oser Avenue
Hauppauge, NY 11778
NEXUS CUSTOM ELECTRONICS, INC. ("Nexus")
Prospect Street
Brandon, VT 05733
Gentlemen:
Reference is made to the Second Restated and Amended Loan and
Security Agreement in effect between us as successor by merger to BNY Financial
Corporation which was merged into GMAC Commercial Credit LLC ("GMAC"), as Agent
and Lender, and Fleet Bank, N.A., f/k/a Natwest Bank, N.A ("Fleet") as Lender,
dated September 13, 1995, as supplemented and amended from time to time, (the
"Agreement"). Both GMAC and Fleet may hereinafter be referred to jointly as the
"Lenders", and individually, as a "Lender". Initially capitalized terms not
defined herein shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, you have requested that we amend the Agreement so as to
increase the Maximum Loan Amount for each Lender from $15,000,000 to
$25,000,000, for a total amount of $50,000,000; and
WHEREAS, you have requested such increase to enable you to
purchase 100% of the common stock of Interface Electronics Corp
("Interface"); and
WHEREAS, the Lenders are willing to agree to such an increase in
the Maximum Loan Amount for each Lender, provided that simultaneously
with such increase, Interface execute and sign an Assumption Agreement by
which it will become an additional Debtor under the Agreement with the
same effect as if it had been an original signor of such Agreement, and
WHEREAS, as part of such assumption by and incorporation of
Interface into the Agreement as an additional Debtor, Interface would
pledge all of its assets to the Agent on behalf of the Lenders; and
WHEREAS, you and Interface are agreeable to the foregoing
conditions;
<PAGE> 15
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. Effective as of the date hereof, the Agreement shall be amended by
replacing the phrase "$15,000,000" appearing next to the phrase
"Maximum Loan Amount" underneath the signature of each Lender,
with the phrase "$25,000,000".
2. Interface shall be deemed a Debtor for all purposes of the
Agreement, with the same result as if it had been an original
signor of the Agreement.
3. The phrase "$15,000,000" appearing on the 8th line of Section 4(a)
of the Agreement shall be deleted in its entirety, and replaced
with the phrase "$30,000,000".
4. The definition of "Contract Rate" as set forth in paragraph 1 of
the Agreement, as amended by an Amendment letter dated August 1,
1997, is hereby deleted and replaced with the following:
"'Contract Rate' means an interest rate per annum equal to
(i) the applicable LIBO Rate, plus one and three quarter percent
(1.75%) in the case of LIBO Rate Loans first continued or
converted thereto prior to June 30, 2000, (ii) in the case of LIBO
Rate Loans first continued or converted thereto, in the quarter
ending September 30, 2000 or thereafter, the applicable LIBO Rate
plus the margin ("LIBO Margin") stated opposite the ratio range of
Funded Debt to net earnings before interest, taxes, depreciation,
amortization, extraordinary gains and losses and all other
non-cash charges on a consolidated basis ("EBITDA") during the
immediately preceding four fiscal quarters as stated in the table
immediately below:
Funded Debt/EBITDA LIBO Margin
greater than 3.5 to 1 2 1/4%
3.0 to 3.5 to 1 2%
2.5 to 3.0 to 1 1 3/4%
2.0 to 2.5 to 1 1 1/2%
1.5 to 2.0 to 1 1 1/4%
less than 1.5 to 1 1%
2
<PAGE> 16
The Contract Rate applicable to LIBO Rate Loans shall be adjusted
quarterly."
5. In consideration for the increase in the Maximum Loan Amounts,
Debtor shall pay to Agent for the pro rata share of each Lender
a facilitation fee of $50,000.
6. The following section shall be added as Section 5(a)(v)of the
Agreement:
"(v) If at any time, the Agent shall have determined (which
determination shall be conclusive and binding upon the
Debtor) that, by reason of circumstances affecting the
interbank eurodollar market, adequate and reasonable
means do not exist for ascertaining the Contract Rate
for any requested Loan or any outstanding Loan, or if
the Agent shall have received notice from any Lender
(in each case an 'Affected Lender') that the Contract
Rate determined pursuant to the terms hereof does not
accurately reflect the cost to such Affected Lender of
making or maintaining its Loans at the Contract Rate,
then the Agent shall give telephonic notice thereof, to
the Borrower, as soon as practicable thereafter. If such
notice is given, any Loans outstanding or requested
shall become or be made as Loans bearing interest at the
Alternate Base Rate. Until such notice has been
withdrawn by the Agent, no further Loans shall be made
or continued at the Contract Rate. After withdrawal of
such notice, all outstanding Loans, and all requested
Loans thereafter, shall again bear interest at the
Contract Rate."
7. The following shall be added as Section 5(a)(vi) of the
Agreement:
"(vi) Upon the occurrence and continuation of an Event of
Default and after notice by the Agent to the Debtor or
after maturity or after judgment has been rendered on
Obligations of the Debtor hereunder, the unpaid
principal of all Loans shall, at the opinion of the
Agent, bear interest at a rate which is two (2%) percent
per annum in excess of any interest rate which would
otherwise be applicable under the terms of this
Agreement."
8. The following shall be added as Section 5(a)(vii)of the
Agreement:
"(vii) If any payment hereunder becomes due on a day which is
not a Business Day, the due date of payment shall be
extended to the next succeeding Business Day, and such
extension of time shall be included in computing
interest and fees in connection with such payment."
3
<PAGE> 17
9. Section 17(e) of the Agreement shall be amended to read in
its entirety as follows:
"(e) Maintain at all times consolidated net worth (all
amounts which would be included under shareholder's
equity on a consolidated balance sheet of Debtor,
determined in accordance with generally accepted
accounting principles), in an amount not less than
$39,000,000 from 6/30/00 to 3/31/01, and of not less
than $42,000,000 as of 6/30/01, which amount shall
be increased at the end of each quarter on a
cumulative basis by an amount equal to 50% of the
consolidated net profit after taxes, if any, for
such quarter."
10. Section 17(f) of the Agreement shall be amended to read as
follows:
"(f) Maintain at all times a ratio of the sum of (i) cash
and cash equivalents, plus (ii) accounts receivable
to current liabilities (as defined in paragraph
17(d) of not less than .40 to 1 as of 6/30/00 and at
all times thereafter."
11. The following shall be added as Section 17(h) of the
Agreement:
"(h) Maintain a Cash Flow Ratio at the end of each of the
following calculation quarters of at least 2.00 to 1
for each quarter for the period from the quarter
ending 6/30/00 through the quarter ending 3/31/01,
and for the quarter ending 6/30/01 and at all times
thereafter, 2.25 to 1."
12. The following shall be added as Section 18(g):
"(g) Permit the Funded Debt Ratio at the end of each
quarter to be greater than the amount set forth
below for each computation quarter:
Computation Quarter Funded Debt Ratio
6/30/00 4.0 to 1
9/30/00 3.75 to 1
12/31/00 3.75 to 1
3/31/01 3.50 to 1
6/30/01 and at all times
thereafter 3.50 to 1"
4
<PAGE> 18
13. The terms and conditions of Sections 17(d), 17(g) and 18(e)
of the Agreement shall be deleted in their entirety, and
the words: "[Intentionally omitted]" shall be substituted
therefor.
14. The following section shall be added as Section 22(e) of
the Agreement:
"(e) Any Lender shall have the unrestricted right at any
time and from time to time, and without the consent
of or notice to Debtor, to grant to one or more
banks or other financial institutions (each, a
"Participant") participating interests in any or all
of the Loans held by such lender hereunder. In the
event of any such grant by a Lender of a
participating interest to a Participant, whether or
not upon notice to Debtor, such Lender shall remain
responsible for the performance of its obligations
hereunder and Debtor shall continue to deal solely
and directly with such Lender in connection with
Debtor's rights and obligations hereunder. A Lender
may furnish any information concerning Debtor in its
possession from time to time to prospective
Participants, provided that such Lender shall
require any such prospective Participant to agree in
writing to maintain the confidentiality of such
information."
15. The following section shall be added as Section 27 of
the Agreement:
"27. Any Lender may at any time pledge all or any portion
of its rights hereunder and under the agreements,
instruments and documents executed in connection
herewith (collectively, the "Loan Documents") to any
of the twelve (12) Federal Reserve Banks organized
under Section 4 of the Federal Reserve Act. 12
U.S.C. Section 341. No such pledge or enforcement
thereof shall release such Lender from its
obligations under any of the Loan Documents."
16. The following definitions shall be added to Section 1
of the Agreement in alphabetical order:
"Funded Debt" shall mean for Debtors on a consolidated
basis, liabilities for borrowed money, including without
limitation, capitalized lease obligations.
"Funded Debt Ratio" shall mean as at the end of each
quarter, the ratio, for any given computation period of (a)
Funded Debt to (b) EBITDA calculated on a rolling four
quarter basis.
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<PAGE> 19
"Cash Flow Ratio" shall mean as EBITDA less unfunded
capital expenditures and less cash taxes paid, divided by
the sum of interest expense and current portion of long
term debt, calculated at the end of each quarter on a
rolling four quarter basis.
17. This Agreement shall become effective subject to the
satisfaction of the following conditions precedent:
(a) Delivery of a fully executed copy of this Amendment to
the Agent.
(b) Delivery of a fully executed Assumption Agreement
signed by the Debtor (comprised of Jaco, Nexus and
Interface as well as agreed to by all of the
subsidiaries in their capacities as guarantors) by
which all Debtors shall agree that Interface shall
become a Debtor under the Agreement.
(c) Delivery of a fully executed General Security
Agreement, executed by Interface, granting the Agent,
for the benefit of the Lenders, a First Priority
security interest in all assets of Interface as well
as delivery of duly executed UCC Financing
Statements covering such assets.
(d) Delivery of a fully executed questionnaire relating to
the business of Interface.
(e) Delivery of a Certificate by the Secretary of Interface
in form satisfactory to the Agent, evidencing Board of
Directors resolutions authorizing the transactions
contemplated hereby.
(f) The non-occurrence or continuation of an Event of
Default under the Agreement.
(g) The prior or simultaneous completion of the purchase by
the Debtor of 100% of the outstanding common stock of
Interface.
18. By their signatures below, Jaco, Nexus and Interface hereby
ratify the Agreement and agree to be jointly and
severally liable for all Obligations under the
Agreement and agree that all of the outstanding
amounts of the Loans under the Agreement, as of the
date hereof, shall be valid and binding Obligations
of each of them, and shall be deemed Obligations
outstanding under the Agreement, and hereby agree
and promise to repay to the Agent, for the benefit
of the Lenders, such Obligations (including but not
limited to all applicable interest) in accordance
with the terms of the Agreement, but in no event,
later than the Termination Date (for purposes
hereof, "Termination Date" shall mean September 14,
2001, or any extended termination date, or any
earlier termination date, whether by acceleration or
otherwise).
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<PAGE> 20
19. By their signatures below, Jaco, Nexus and Interface hereby
ratify and affirm to the Agent that as of the date
hereof, they are in full compliance with all
covenants under the Agreement and certify that all
representations and warranties of the Agreement are
true and accurate as of the date hereof, with the
same effect as if they had been made as of the date
hereof.
Except as herein specifically amended, the Agreement shall remain
in full force and effect in accordance with its original terms, except as
previously amended.
If the foregoing accurately reflects our understanding, kindly
sign the enclosed copy of this letter and return it to our office as soon as
practicable.
Very truly yours,
GMAC COMMERCIAL CREDIT LLC
By: /s/ Frank Imperato
----------------------------
Title: Senior Vice President
AGREED AND ACCEPTED:
JACO ELECTRONICS, INC. FLEET BANK, N.A.
By: /s/ Joel Girsky By: /s/ Alice Adelberg
----------------------------- ----------------------------
Title: President Title: Vice President
NEXUS CUSTOM ELECTRONICS, INC. INTERFACE ELECTRONICS CORP.
By: /s/ Joel Girsky By: /s/ Joel Girsky
----------------------------- ----------------------------
Title: President Title: President
7
