<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934.
For the quarterly period ended June 30, 1997.
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the transition period from_________________to___________________
Commission File Number: 016441
CODE - ALARM, INC.
------------------
(Exact name of registrant as specified in its charter)
MICHIGAN
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(State or other jurisdiction of
incorporation or organization)
38-2334698
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(I.R.S. Employer
Identification No.)
950 EAST WHITCOMB, MADISON HEIGHTS, MICHIGAN 48071
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(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code): 810-583-9620
------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
The number of shares outstanding of the registrants common stock, without
par value, as of August 18, 1997 is 2,320,861.
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
Part I. - Financial Information
Consolidated Condensed Balance Sheets -
As of June 30, 1997 (Unaudited) and December 31, 1996 3
Consolidated Condensed Statements of Operations (Unaudited) -
Three months ended June 30, 1997 and 1996, and six months
ended June 30, 1997 and 1996 4
Consolidated Condensed Statements of Cash Flows (Unaudited) -
Six months ended June 30, 1997 and 1996 5
Notes to Consolidated Condensed Financial Statements 6
Management's Discussion and Analysis of Financial
Condition and Results of Operations 7
Part II. - Other Information 9
</TABLE>
2
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PART I - FINANCIAL INFORMATION
ITEM I. FINANCIAL STATEMENTS
CODE-ALARM, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
June 30,
1997 December 31,
ASSETS (Unaudited) 1996
------ ----------- -----------
<S> <C> <C>
Cash and cash equivalents $ 170 $ 45
Accounts receivable (less allowance for 7,128 8,798
doubtful accounts of $335,000 and
$950,000, respectively)
Inventories 7,024 8,734
Refundable income taxes 1,059 1,059
Deferred income taxes 2,040 2,040
Other 454 729
----------- -----------
Total current assets 17,875 21,405
Property and equipment, net of accumulated depreciation 3,075 3,750
Excess of cost over net assets acquired, net 1,497 1,910
Other intangibles, net 443 651
Other assets 2,012 1,711
----------- -----------
Total assets $24,902 $29,427
=========== ===========
LIABILITIES & SHAREHOLDERS' EQUITY
- ----------------------------------
Current portion of long-term debt $14,666 $ 9,308
Accounts payable 6,281 9,874
Accrued expenses 1,500 2,358
Income tax payable 22
Reserve for litigation 5,934
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Total current liabilities 22,447 27,496
Long-term debt 744 879
----------- -----------
Total liabilities 23,191 28,375
Shareholders' equity:
Common stock 12,213 12,213
Foreign currency translation adjustment (260)
(Accumulated deficit) (10,502) (10,901)
----------- -----------
Total shareholders' equity 1,711 1,052
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Total liabilities and shareholders' equity $24,902 $29,427
=========== ===========
</TABLE>
See accompanying notes to consolidated condensed financial statements.
3
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CODE-ALARM, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
--------------------------- ----------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales $12,639 $15,216 $28,414 $31,812
Cost of sales 7,820 9,441 17,563 20,115
------- ------- ------- -------
Gross profit 4,819 5,775 10,851 11,697
Operating expenses:
Sales and marketing 1,757 2,489 4,001 5,087
Engineering 420 664 846 1,426
General and administrative 1,804 2,275 4,336 4,312
Impairment of goodwill 373
------- ------- ------- -------
3,981 5,428 9,556 10,825
------- ------- ------- -------
Income from operations 838 347 1,295 872
Other expense:
Interest expense 376 387 712 805
Other 176 1 184 3
------- ------- ------- -------
552 388 896 808
------- ------- ------- -------
Income (loss) before taxes 286 (41) 399 64
Income tax (benefit) (10) 46
------- ------- ------- -------
Net income (loss) $ 286 $ (31) $ 399 $ 18
======= ======= ======= =======
Net income (loss)
per common share $ 0.12 $ (0.01) $ 0.17 $ 0.01
======= ======= ======= =======
Weighted average number
of common outstanding 2,321 2,321 2,321 2,321
======= ======= ======= =======
</TABLE>
See accompanying notes to consolidated condensed financial statements.
4
<PAGE> 5
CODE-ALARM, INC
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Six Months Ended June 30
--------------------------
1997 1996
------------ ------------
<S> <C> <C>
Cash flows from operating activities $ 992 $ 1,056
Cash flows from investing activities:
Capital expenditures (155) (48)
Payments for intangible assets (38)
Cash flows from financing activities:
Reduction of long-term debt (136) (1,375)
Proceeds from line of credit 5,479 309
Payment of judgment (6,055)
Proceeds from exercise of stock options 2
------- ------
Net change in cash and cash equivalents 125 (92)
Cash and cash equivalents, beginning of period 45 416
------- ------
Cash and cash equivalents, end of period $170 $322
======= ======
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the six month period for:
Interest $1,200 $448
======= ======
Income taxes $25 ---
======= ======
</TABLE>
See accompanying notes to consolidated condensed financial statements.
5
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CODE-ALARM, INC
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. The consolidated condensed interim financial statements reflect all
adjustments which in the opinion of management are necessary to fairly
state results for the interim periods presented. All adjustments are of
a normal and recurring nature, except for the impairment of goodwill
in the first quarter of 1997, and a charge for the accumulated foreign
currency translation in the second quarter of 1997, both items relating
to the European divestiture. Results of operations for the interim
periods presented are not necessarily indicative of results to be
expected for the fiscal year.
The Company is involved in various matters of litigation, including those
more fully described in "Legal Proceedings" in Part II of this Form 10-Q.
Any substantial damage amount awarded against the Company in these
suits may have a material adverse impact on the Company's financial
condition and results of operations.
2. The financial statements include the accounts of the Company and its
wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
3. Inventories consist of the following:
<TABLE>
<CAPTION>
June 30, 1997 December 31,
(Unaudited) 1996
---------------- ------------
<S> <C> <C>
Raw materials $ 5,882 $ 5,811
Work in process 305 324
Finished goods 837 2,599
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$ 7,024 $ 8,734
======== ========
</TABLE>
4. On April 30, 1997, the Company's French subsidiary, European Automotive
Equipment, filed a voluntary reorganization proceeding as debtor in
possession under the supervision of the Commercial Court of
Bobigny, France. Effective July 20, 1997, the assets of the entity were
purchased out of bankruptcy by an unaffiliated party. No proceeds from
this purchase were received by the Company.
On July 25, 1997, the Company closed the sale of its United Kingdom
("UK") subsidiary, Code Alarm UK Limited, to its former management.
Proceeds from this sale are to be paid $80,000 in cash, with the balance
over a four year period. The sale was effective April 1, 1997.
The Consolidated Condensed Statements of Operations and Cash Flows
include European results only for the period January 1, 1997 to April 30,
1997. The Consolidated Condensed Balance Sheet at June 30, 1997, include
an amount related to the sale of the UK subsidiary of $777,000.
5. On April 18, 1997, the Company agreed to settle and make final
payment in satisfaction of a prior year judgment against the Company.
The judgment was paid from proceeds of a bond secured by a bank letter
of credit and satisfied by additional borrowings of the Company, plus
cash from the Company for accrued interest, totaling approximately
$6 million. The amount had been charged to operations and accrued for
in prior periods.
6
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Results of Operations
The Company's consolidated net sales decreased $3.4 million , or 10.7%,
to $28.4 million for the six months ended June 30, 1997, as compared to the
$31.8 million for the six months ended June 30, 1996. Sales from the Company's
European operations declined $4 million in the first half of 1997 as compared
to the same period of 1996, as result of the Company's European divestiture.
North American sales were up 2.5% during the first half of 1997 as compared to
1996 on the continuing strength in sales to original equipment manufacturers
("OEM"), which increased 13.3%, and direct sales to international dealers,
which increased 130%. Domestic retail aftermarket and automotive expediter
sales were down from the prior year.
For the six months ended June 30, 1997, consolidated gross profit
increased to 38.2% as compared to 36.8% for the comparable six month period
ended June 30, 1996, as the Company's North American margins continue to
benefit from process improvement efforts and increased productivity.
Consolidated operating expenses for the first six months of 1997 decreased
$1.2 million, or 11.7%, to $9.6 million as compared to $10.8 million for the
first six months of 1996. This decrease was primarily due to the European
divestiture. The Company, however, continues to incur significant legal and
other professional fees in asserting it patent rights and as a defendant in
patent infringement suits.
As a result of the foregoing, the Company's consolidated operating income
from continuing operations for the six months ended June 30, 1997, was $1.3
million, an increase of $423,000 from the comparable period in 1996. Excluding
the impact of the European operations on consolidated operating income, North
American operating income was $2.4 million for the six months ended June 30,
1997, as compared to $1.7 million for the six months ended June 30, 1997.
Interest expense was down 12% for the six months ended June 30, 1997, as
compared to the six month period ended June 30, 1996, to $712,000, as the
Company continues to apply excess cash flow from operating activities to reduce
borrowings and other long-term debt. The Company incurred in the second
quarter of 1997 an additional charge of $177,000 as other expense relating to
its divestiture.
As a result of the foregoing, the Company recorded net income for the six
months ended June 30, 1997, of $399,000, or $0.17 per share, compared to net
income of $18,000, or $0.01 per share, for the six months ended June 30, 1997.
Liquidity and Capital Resources
The Company's consolidated working capital at June 30, 1997 was a deficit
of ($4.6) million as compared to a deficit of ($6.1) million at December 31,
1996. The current ratio (current assets divided by current liabilities) as of
June 30, 1997, is .80 to 1 compared to .78 to 1 at December 31, 1996.
Net cash provided from operating activities for the six months ended June
30, 1997, was $992,000, which was used to finance capital expenditures of
$155,000 and other obligations.
On June 11, 1997, the Company and the Bank entered into an Amendment and
Forbearance Agreement ("Forbearance Agreement") regarding the Company's
violations of various covenants in the loan agreements. Among other things,
the Forbearance Agreement, which expires October 31, 1997, sets a limit on the
amount by which the revolving credit loans to the Company could exceed the
specified percentages of eligible inventory and
7
<PAGE> 8
Liquidity and Capital Resources (continued)
receivables (the "Out of Formula Amount"), made all advances by the Bank
discretionary, and eliminated LIBOR based loans. The Forbearance Agreement
also modified the definitions of eligible inventory and receivables, provided
for the Company to make various payments to the Bank to reduce the Out of
Formula Amount, modified certain covenants and reporting requirements, and
added other covenants and reporting requirements. As a result of the Company's
defaults under the Forbearance Agreement, the Bank has imposed a default rate
of interest "prime plus 3%".
All outstanding borrowings due the Bank at June 30, 1997, have been
classified as a current liability. If the Company is unable to obtain long-term
financing, the Company's ability to continue operations at planned levels may be
impaired.
The Company's liquidity could be materially adversely impacted if the
damages awarded against the Company in its trial against Directed Electronics
are substantial. See "Legal Proceedings" in Part II of this Form 10-Q.
8
<PAGE> 9
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
Code-Alarm, Inc. v. Electromotive Technology Corporation. Case
No. 87-CV-74022-DT. In November of 1987, the Company filed a
declaratory judgment action against Electromotive Technology
Corporation ("ETC") in the United States District Court for the
Eastern District of Michigan, Southern Division (the "Court") seeking
a declaration that ETC's U.S. Patent No. 4,585,569 (the "'569 Patent"),
describing and claiming a shock or motion sensor system, was invalid
or not infringed by the Company. Subsequently, Directed Electronics
("Directed"), of Vista, California, acquired an interest in the '569
Patent and was made a party to the lawsuit. A judgment was entered
against the Company on June 16, 1995 in the Court and the Company
posted a letter of credit as security for an appeal bond in the amount
of approximately $5.9 million, representing the amount of the
judgment, including interest. On April 8, 1997 the Court granted the
Company's motion to pay the bond proceeds and accrued interest to
Plaintiffs, in full satisfaction of the judgment, without prejudice to
the Company's right to proceed to set aside the judgment on appeal.
In April 1997, the Company paid $6.1 million in satisfaction of the
judgement. On June 4, 1997, the Company's appeal was denied.
In the same proceeding Directed is asserting patent infringement
claims against two of the Company's subsequent shock sensor
designs. On July 23, 1997, the Court entered a Judgment on Liability
against the Company that these two designs infringe the '569 Patent.
The Court has permanently enjoined the Company from the manufacture,
use, sale, offering for sale and importing of these two subsequent
designs and has scheduled a trial to commence on August 18, 1997, on
the issues of willfulness and damages. The damage amount to be awarded
against the Company could be substantial and could have a material
adverse impact on the Company's financial condition and results of
operations.
Aureo Rivera Davila and Aureo E. Rivera v. Magna Holding Company
et al., Case No. 97C1909, filed March 20, 1997 in the U.S. District
Court, Northern District of Illinois, Eastern Division. Plaintiffs
seek enforcement against the Company of a $19.4 million default
judgment entered by the Court on July 26, 1990 against Chapman
Industries Corp. ("Industries") for alleged patent infringement. With
accumulated interest, the amount of the default judgment is now
approximately $30 million. A subsidiary of the Company purchased
certain assets from LaSalle National Bank ("LaSalle") on January 19,
1990 in a private sale conducted by LaSalle under Section 9-504 of the
Illinois Uniform Commercial Code to dispose of collateral securing a
defaulted loan made by LaSalle to Chapman Products, Inc. ("Products").
Plaintiffs allege that the assets were acquired by Products from
Industries. Plaintiffs claim that the sale of assets to the
subsidiary of the Company was a fraudulent conveyance and that the
Company is a successor in interest to the liability of Industries for
the default judgment. The Company has tendered the defense of this
action to LaSalle pursuant to the indemnification terms contained in
its purchase agreement with LaSalle. LaSalle has agreed to pay for up
to 50% of the defense, but has refused to assume the full defense.
9
<PAGE> 10
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
The Company held its annual meeting on May 20, 1997. The
stockholders re-elected Mr. William S. Pickett and Mr. Jack D.
Rutherford to the board of directors, each receiving at least
1,955,688 votes. Mr. Rand Mueller, Mr. Kenneth Mueller, Mr.
Marshall J. Mueller, Mr. Alan H. Foster and Mr. Peter J. Stouffer
continue their terms as directors of the Company.
The stockholders ratified the appointment of Deloitte &
Touche LLP as the Company's independent certified public
accountants for the year ending December 31, 1997. There were
2,000,614 votes for and 24,515 votes against this matter, with
9,296 votes abstaining.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) The documents filed as a part of this report:
(10.30) Amendment and Forbearance Agreement dated June 11,
1997.
(11) Shares issuable under employee stock options were
excluded from the computation of weighted average
number of shares outstanding since such shares
were either anti-dilutive or their dilutive effect
was not material.
(27) Financial Data Schedule.
(b) There were no reports on Form 8-K filed during the
quarter ended June 30, 1997.
10
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CODE-ALARM, INC.
----------------
(Registrant)
Date: August 18, 1997 /s/ Rand W. Mueller
--------------- ----------------------
Rand W. Mueller
President
Date: August 18, 1997 /s/ Craig S. Camalo
--------------- ----------------------
Craig S. Camalo
Vice President of Finance
(Chief Financial Officer)
(Principal Accounting Officer)
11
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
10.30 Amendment and Forbearance Agreement dated June 11, 1997.
27 Financial Data Schedule.
</TABLE>
12
<PAGE> 1
EXHIBIT 10.30
AMENDMENT AND FORBEARANCE AGREEMENT
NBD Bank ("NBD" or "Lender"), Code-Alarm, Inc. ("Code-Alarm" or
"Borrower") Tessco Group, Inc. ("Tessco"), Chapman Security Systems, Inc.
("Chapman"), Anes, Inc. d/b/a Anes Security, Inc. ("Anes") and Intercept
Systems, Inc. ("Intercept"), enter into this Amendment and Forbearance
Agreement (this "Agreement") on June 11, 1997. For convenience, (i) Tessco,
Chapman, Anes and Intercept are referred to herein, collectively, as
"Guarantors" and, individually, as "Guarantor", and (ii) Code-Alarm and
Guarantors are referred to herein, collectively, as the "Parties" and,
individually, as a "Party".
RECITALS
A. NBD, as lender and secured party, and Code-Alarm, as borrower and
debtor, are parties to a certain Loan Agreement, dated as of June 28, 1996, (as
may be amended and with all supplements thereto, the "Loan Agreement").
B. In furtherance of, and in accordance with, the Loan Agreement,
NBD agreed, among other things, to make available through May 31, 1998 a
secured revolving credit facility (the "Revolving Credit Facility"), subject to
certain limitations, up to a maximum principal amount of $14,250,000 in the
aggregate at any time outstanding. The Revolving Credit Facility is evidenced
by a Revolving Credit Note, dated June 28, 1996, in the original principal
amount of $14,250,000 (the "Revolving Credit Note").
C. NBD also made term loans to Code-Alarm evidenced by (i) a Term
Note, dated June 28, 1996 in the original principal amount of $1,300,000 which
matures on May 23, 1997 ("Term Note A"), and (ii) a Term Note, dated June 28,
1996 in the original principal amount of $1,650,000, which matures on May 23,
1999 ("Term Note B"). For convenience, Term Note A and Term Note B are
referred to herein collectively as the "Term Notes."
D. In addition, NBD holds five year brokered lease paper with
respect to Code-Alarm (the "Brokered Lease Paper").
E. Among other security agreements (i) Code-Alarm executed and
delivered to NBD a Security Agreement, dated as of May 23, 1995 (as may be
amended and with all supplements thereto, the "Security Agreement"); (ii)
Code-Alarm executed and delivered to NBD a Pledge Agreement and Irrevocable
Proxy, dated May 23, 1995 (as may be amended and with all supplements thereto,
the "Pledge Agreement"); (iii) Code-Alarm, as both owner and beneficiary,
executed and delivered to NBD an Assignment of Policy as Collateral Security,
dated May 18, 1995, with respect to Mueller (the "Life Insurance Assignment"),
and (iv) Code-Alarm procured for the benefit of NBD a multi-debtor trade credit
insurance policy, issued by Reliance Insurance Company of Illinois, Policy No.
2535724-96 (the "Foreign Receivable Insurance Policy").
F. All of the obligations of Code-Alarm to NBD, whether then
existing or thereafter created or arising, are guaranteed by Guarantors
pursuant to that certain guaranty contained in
<PAGE> 2
the Loan Agreement (the "Guaranty"). Each Guarantor's obligations with respect
to the Guaranty are secured in accordance with the terms and conditions of a
security agreement executed by each Guarantor in favor of NBD, each of which is
dated as of May 23, 1995 (each as may be amended and with all supplements
thereto, a "Guarantor Security Agreement" and, collectively, the "Guarantor
Security Agreements"). For convenience, the Guaranty, the Guarantor Security
Agreements and all other documents and agreements executed by any Guarantor in
connection therewith are referred to collectively as the "Guarantor Loan
Documents."
G. Code-Alarm and each Guarantor also executed a Consent and
Amendment of Security Documents dated June 28, 1996 (the "Ratification of
Security Documents").
H. For convenience, all of the foregoing documents, agreements,
assignments, and promissory notes set forth in Recitals A through G above,
together with any other documents, instruments, agreements or promissory notes
executed in connection with, or in furtherance of, any of the foregoing, as
amended from time to time, including as amended by this Agreement, but
exclusive of all present or future oral agreements between NBD and any one or
more of the Parties, are referred to, collectively, as the "Loan Documents."
I. On May 1, 1997, there was (i) $11,146,987.20 in principal owing
by Code-Alarm to NBD under the Revolving Credit Facility, (ii) $1,300,000 in
principal owing by Code-Alarm to NBD under Term Loan A, (iii) $1,100,000 in
principal owing by Code-Alarm to NBD under Term Loan B, and (iv) $268,125.97 in
principal owing by Code-Alarm to NBD under the Brokered Lease Paper, plus
accrued but unpaid interest, costs and expenses (including attorneys' fees)
called for by the Loan Documents. Collectively, together with all other
principal and interest due or becoming due to NBD, together with the payment of
all other sums, indebtedness and liabilities of any and every kind now or
hereafter owing and to become due from Code-Alarm to NBD, however created,
incurred, evidenced, acquired or arising, and whether direct or indirect,
primary, secondary, fixed or contingent, matured or unmatured, joint, several,
or joint and several, and whether for principal, interest, reimbursement
obligations, indemnity obligations, obligations under guaranty agreements,
fees, costs, expenses, or otherwise, all of Code-Alarm's obligations under this
Agreement, together with all other present and future obligations of Code-Alarm
to NBD, are referred to, collectively, as the "Obligations."
J. Each Party, jointly and severally, acknowledges and agrees that
(i) the Obligations, Guarantors' obligations under the Guarantor Loan
Documents, and all other obligations of any one or more of the Parties to NBD
are owing to NBD without setoff, recoupment, defense or counterclaim, in law or
in equity, of any nature or kind; (ii) the Obligations are secured by (a)
valid, perfected, indefeasible, enforceable, first priority, liens and security
interests in favor of NBD in, among other things, all of Code-Alarm's present
and future personal property, including, without limitation, accounts, chattel
paper, general intangibles, documents, instruments, inventory, machinery,
equipment, furniture, fixtures and all other tangible and intangible personal
property and all proceeds and products of all of the foregoing, as more fully
described in the Security Agreement; (b) a valid, perfected indefeasible and
enforceable pledge
2
<PAGE> 3
by Code-Alarm to NBD of (i) all of the issued and outstanding shares of capital
stock of each Guarantor, (ii) 66% of the issued and outstanding shares of
capital stock of Europe Auto Equipment S.A. ("EAE"), a wholly-owned subsidiary
of Code-Alarm, located in Paris, France, and (iii) 66% of the issued and
outstanding capital stock of Code-Alarm Europe Ltd. ("Ltd"), a European holding
company, wholly-owned by Code-Alarm, which owns 100% of the capital stock of
Code-Alarm U.K. Ltd. ("UK"), Code-Alarm Iberica, S.A. ("Iberica") and
Code-Alarm Benelux ("Benelux"), each as more fully described in the Pledge
Agreement; (c) a valid, perfected, indefeasible and enforceable assignment by
Code-Alarm of a life insurance policy on the life of Mueller, as more fully
described in the Life Insurance Assignment; and (d) valid, perfected,
indefeasible, enforceable, first priority liens and security interests in favor
of NBD in, among other things, all of each Guarantor's present and future
personal property, including, without limitation, accounts, chattel paper,
general intangibles, documents, instruments, inventory, machinery, equipment,
fixtures and all other tangible and intangible personal property and all
proceeds and products of all of the foregoing, as more fully described in
Guarantor Security Agreements. For convenience, all collateral referred to in
this paragraph, together with all other collateral described in the Loan
Documents and all collateral heretofore, simultaneously herewith or hereafter
granted to NBD by any one or more of the Parties to secure any of the
Obligations or any one or more of the Parties' other obligations to NBD,
including, without limitation, the obligations of any one or more of the
Guarantors under the Guarantor Loan Documents, is referred to, collectively, as
the "Collateral". In addition, for convenience, EAE, Ltd., UK, Iberica and
Benelux are referred to, collectively, as the "Foreign Subsidiaries."
K. Each Party reaffirms, ratifies, confirms and approves its
obligations and duties under the Loan Documents, as modified by this Agreement.
Without limiting the generality of the immediately preceding sentence,
Guarantors hereby reaffirm, ratify, confirm and approve their obligations and
duties under the Guarantor Loan Documents and the provisions herein, and
acknowledge and agree that the Guarantor Loan Documents extend to, and cover,
all of the Obligations, including the sums described in Paragraph I above.
Each Party, jointly and severally, reaffirms, ratifies and confirms the liens,
mortgages, assignments and security interests granted to NBD in the Collateral
under the Loan Documents or otherwise.
L. During the fiscal years ended December 31, 1995 and December 31,
1996, Code-Alarm suffered substantial losses, leaving Code-Alarm in default
under the Loan Documents. NBD informed Code-Alarm of these defaults and
informed Code-Alarm that every effort should be made to effect an improvement
in Code-Alarm's business and financial prospects.
M. By letter dated April 4, 1997 (the "April 4 Letter"), NBD
informed the Parties that, due to Code-Alarm's unsatisfactory performance and
various defaults under the Loan Documents, NBD needed to more fully evaluate
Code-Alarm's financial controls and performance, management goals and
directions, NBD's collateral position and whether NBD wished to continue a
lending relationship with Code-Alarm.
N. Following the receipt of the April 4 Letter, representatives of
the Parties and NBD discussed on several occasions the terms under which NBD
would be willing to forbear and on
3
<PAGE> 4
May 8, 1997 a draft Amendment and Forbearance Agreement (the "Draft) was
circulated to Code-Alarm and its counsel. On May 29, 1997 Code-Alarm's
counsel informed NBD that Code-Alarm would not enter into an Amendment and
Forbearance Agreement with NBD. On May 30, 1997, Code-Alarm's counsel
informed NBD that Code-Alarm had decided to continue negotiations and to
finalize and execute an Amendment and Forbearance Agreement. On Monday, June
2, 1997, the parties met to finalize an Amendment and Forbearance Agreement
which was to be executed on June 3, 1997. On June 3, 1997, Code-Alarm's
counsel again informed NBD that Code-Alarm would not execute the Amendment and
Forbearance Agreement on that day as had been agreed. Therefore, on June 3,
1997, NBD sent Code-Alarm a Notice of Default (the "Notice of Default")
notifying Code- Alarm of its default under its loan agreements with NBD and
advising Code-Alarm that effective as of June 1, 1997, interest on all
Obligations was being accrued at the overdue rate.
O. Code-Alarm is in default under the Loan Documents for the
following reasons:
(i) Code-Alarm is in violation of the following
financial covenants contained in the Loan Agreement (collectively, the
"Existing Covenant Violations");
(a) Based on Code-Alarm's audited financial
statements for the 12 month period ended December 31, 1996
(the "1996 Financials"), the ratio of Consolidated Current
Assets to Consolidated Current Liabilities is less than
1.4 to 1.0. (The 1996 Financials indicate that the ratio
of Consolidated Current Assets to Consolidated Current
Liabilities is 0.82 to 1.0).
(b) Based on the 1996 Financials, Consolidated
Working Capital is less than $9,750,000. (The 1996
Financials indicate that Consolidated Working Capital is
negative $4,791,137.)
(c) Based on the 1996 Financials, Consolidated
Tangible Net Worth is less than $3,000,000. (The 1996
Financials indicate that Consolidated Tangible Net Worth
is negative $1,548,019.)
(d) Based on the 1996 Financials, the ratio of
Consolidated Total Liabilities to Consolidated Tangible
Net Worth is greater than 9.5 to 1.0. (The 1996
Financials indicate that the ratio of Consolidated Total
Liabilities to Consolidated Tangible Net Worth is negative
18.33 to 1.0.)
(e) Based on the 1996 Financials, the
Consolidated Fixed Charge Coverage Ratio is less than 1.0
to 1.0. (The 1996 Financials indicate that Consolidated
Fixed Charge Coverage Ratio is negative 4.72 to 1.0.)
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(ii) A tax lien in the amount of $34,128.76 for unpaid
single business taxes assessed October 23, 1995 (the "Tax Lien") was
filed against Code-Alarm on November 20, 1996.
(iii) The Commitment Fee due on March 31, 1997 was not
paid.
(iv) EAE filed for "bankruptcy" in France on April 30,
1997.
(v) Code-Alarm did not meet reporting requirements set
forth in the Loan Agreement for the reporting periods prior to the
calendar year beginning January 1, 1997.
(vi) Based on the Borrowing Base Certificate for the
month ended March 31, 1997, certified by Code-Alarm's Chief Financial
Officer and delivered to NBD on April 23, 1997, Code-Alarm acknowledged
it exceeded the Borrowing Base Formula set forth in the Loan Agreement
by $1,847,000.
For convenience, the Existing Covenant Violations together with all of
the other above-described defaults, are referred to collectively as the
"Existing Defaults." Each Party represents and warrants, after due inquiry and
investigation, that none of them is aware of any other Events of Default or
defaults, or of any event which, with the passage of time, notice, or both,
would become an Event of Default or a default under the Loan Documents or this
Agreement.
P. Each Party also acknowledges that based on the Existing Defaults,
NBD has the right, without further notice, to enforce its rights under the Loan
Documents (including the Guarantor Loan Documents) and applicable law.
Further, if NBD took such action, each Party acknowledges that NBD's actions
would be within NBD's rights under the Loan Documents (including the Guarantor
Loan Documents) and applicable law, and would be reasonable and appropriate
under the circumstances.
Q. Each Party acknowledges and agrees that (i) NBD has fully
performed all of its obligations under the Loan Documents; (ii) NBD has no
obligation to continue to lend to Code-Alarm, or to forbear from enforcing its
rights and remedies beyond the Forbearance Period (as hereinafter defined);
(iii) notwithstanding anything to the contrary contained in the Loan Documents,
any loans made after the date of this Agreement will be made in NBD's sole
discretion; and (iv) NBD has made no representations of any nature or kind that
funding in any amount will continue, or that the Forbearance Period (as
hereinafter defined) will be extended beyond the expiration thereof.
R. Each Party further acknowledges and agrees that the actions taken
by NBD to date in furtherance of the Loan Documents are reasonable and
appropriate under the circumstances and are within NBD's rights under the Loan
Documents and applicable law.
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S. Each Party represents and warrants to NBD that he or it has
received direct and substantial economic benefit from all of the Obligations
and that he or it will continue to receive direct and substantial economic
benefit from such loans, and from any other loans made or which may be made in
the future to Code-Alarm.
T. Each Party has requested that NBD agree to forbear from
exercising its rights and remedies under the Loan Documents and applicable law
in connection with the Existing Defaults until July 31, 1997.
U. Subject to the terms and conditions of this Agreement, and in
reliance on the Parties' agreements, acknowledgments, representations, and
warranties in this Agreement, NBD has agreed to amend the Loan Documents, and
forbear from enforcing its rights and remedies on account of the Existing
Defaults under the Loan Documents (including the Guarantor Loan Documents) and
applicable law, as set forth below.
AGREEMENT
Based on the foregoing Recitals (which are incorporated herein as
agreements, representations, warranties, and covenants of the respective
Parties, as the case may be), and for other good and valuable consideration,
the adequacy and receipt of which are acknowledged by each Party hereto, NBD
and each Party agree as follows:
1. FORBEARANCE. Subject to the following conditions and those set
forth below, NBD agrees to forbear from enforcing its rights and remedies based
on the Existing Defaults through October 31, 1997 (the "Forbearance Period"):
(a) There are no further or additional Events of Default or
defaults under the Loan Documents (including a worsening of the Existing
Defaults, calculating all covenants as of the end of each month), and each
Party fully complies with all terms and conditions of this Agreement and the
Loan Documents; and
(b) On or before June 11, 1997, (the "Effective Date") NBD
receives a fully executed copy of this Agreement, acknowledged by counsel to
each of the Parties as provided below, together with fully executed copies of
all Exhibits hereto that require signature.
With respect to the Existing Covenant Violations, a worsening shall
mean: (a) that the ratio of Consolidated Current Assets to Consolidated
Current Liabilities becomes less than 0.75 to 1.0, (b) that Consolidated
Working Capital becomes more negative than negative $5.7 million, or (c) that
Consolidated Tangible Net Worth becomes more negative than negative $1.6
million. A worsening of (i) the ratio of Consolidated Total Liabilities to
Consolidated Tangible Net Worth and (ii) the Consolidated Fixed Charge Coverage
Ratio shall not be an Event of Default under this Agreement; provided, however,
Code-Alarm shall continue to report all covenant calculations, including the
ratios in (i) and (ii) in this sentence, on a monthly basis.
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2. DEMAND DISCRETIONARY FACILITY. The Loan Agreement is hereby
amended to convert the Revolving Credit Facility to a Demand Discretionary
Facility, which Demand Discretionary Facility shall expire on the earlier of
demand or the expiration of the Forbearance Period. Upon the earlier of demand
or the expiration of the Forbearance Period, all Obligations of Code-Alarm
under such Demand Discretionary Facility shall be due and payable in full. Any
reference in any document or instrument (including the Loan Agreement) to the
Revolving Credit Facility shall constitute a reference to the Demand
Discretionary Facility and any reference in any document or instrument
(including the Loan Agreement) to Revolving Credit Loans shall constitute a
reference to Line of Credit Loans made under the Demand Discretionary Facility.
The Loan Agreement is further amended to eliminate the requirement to pay any
Commitment Fees (as defined in the Loan Agreement) which would have been due
and payable after the Effective Date.
3. ELIMINATION OF LETTER OF CREDIT ADVANCES. The Loan Agreement is
hereby amended to terminate all Letters of Credit Advances. Notwithstanding
anything to the contrary in the Loan Agreement, NBD shall not be required to
issue any Letters of Credit pursuant to such Loan Agreement.
4. ELIMINATION OF EURODOLLAR RATE LOANS. The Parties acknowledge
that under the Loan Agreement, Code-Alarm had the option of electing Eurodollar
Rate Loans or Floating Rate Loans (as those terms are defined in the Loan
Agreement). The Loan Agreement is hereby amended so that no further Eurodollar
Rate Loans shall be permitted. Upon maturity of each existing Eurodollar Rate
Loan, each such loan was converted to a Floating Rate Loan and shall bear
interest at the Note Rate or, if applicable, the Default Rate, each as defined
below.
5. INTEREST.
(a) Anything to the contrary in the Notice of Default
notwithstanding, NBD hereby agrees that interest from June 1 through the date
hereof shall not be accrued at the Overdue Rate set forth in the Loan
Documents.
(b) The Loan Agreement is hereby amended to provide that all
Obligations with respect to payment of principal under the Revolving Credit
Note, the Term Notes and the Brokered Lease Paper, prior to default (excluding
the Existing Defaults, but including a worsening of such Existing Defaults),
shall bear interest at 2% over the rate NBD announces from time to time as its
prime rate (the "Note Rate"). After the occurrence of an Event of Default or
default under this Agreement or the Loan Documents (excluding the Existing
Defaults, but including a worsening of such Existing Defaults), all of such
Obligations shall bear interest at the rate of 3% per annum above the Note Rate
(the "Default Rate"). Notwithstanding the foregoing, in no event whatsoever
shall the rate of interest charged under this Agreement or any agreement or
note executed in connection herewith or referred to or incorporated herein
exceed the highest rate permitted by applicable law. The fact that NBD is
entitled to receive a higher rate of interest upon default is to compensate NBD
for increased administrative and monitoring costs and shall not in any manner
be deemed to have waived or modified any of
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<PAGE> 8
NBD's rights in connection with the occurrence of a default or any Event of
Default under this Agreement or any other Loan Document.
(c) The Loan Agreement is further amended to provide that
interest with respect to the Amended Line of Credit Note, Amended Term Note A
and Amended Term Note B (each as defined below), respectively, shall be due and
payable monthly on the first business day of the following month.
6. AMENDED AND RESTATED NOTES.
(a) The Revolving Credit Note is hereby amended, restated and
replaced in its entirety by an Amended and Restated Demand Business Loan Note,
a copy of which is attached as Exhibit A hereto (the "Amended Line of Credit
Note"). Any reference in any other document or instrument (including, but not
limited to, the Loan Agreement) to the Revolving Credit Note shall constitute a
reference to the Amended Line of Credit Note. The Amended Line of Credit Note
is in substitution and exchange for the Revolving Credit Note and shall not in
any circumstances be deemed a novation or to have paid, terminated,
extinguished or discharged Code-Alarm's Obligations evidenced by the Revolving
Credit Note, all of which Obligations shall continue under, and be evidenced
and governed by, the Amended Line of Credit Note.
(b) The parties acknowledge and agree that Term Note A matured
on May 23, 1997. Code-Alarm has informed NBD that it was unable to pay all
obligations due and payable under Term Note A on such maturity date.
Therefore, Term Note A is hereby amended, restated and replaced in its entirety
by an Amended and Restated Term Note A, a copy of which is attached hereto as
Exhibit B ("Amended Term Note A"), which Amended Term Note A provides among
other things, that such Note is due and payable on the expiration of the
Forbearance Period. Any reference in any other document or instrument
(including, but not limited to, the Loan Agreement) to Term Note A shall
constitute a reference to Amended Term Note A. Amended Term Note A is in
substitution and exchange for Term Note A and shall not in any circumstances be
deemed a novation or to have paid, terminated, extinguished or discharged
Code-Alarm's Obligations evidenced by Term Note A, all of which Obligations
shall continue under and be evidenced and governed by, Amended Term Note A.
(c) Term Note B is hereby amended, restated and replaced in
its entirety by an Amended and Restated Term Note B, a copy of which is
attached hereto as Exhibit C ("Amended Term Note B"), which Amended Term Note B
provides, among other things, that such Note matures at the expiration of the
Forbearance Period. Any reference in any other document or instrument
(including, but not limited to, the Loan Agreement) to Term Note B shall
constitute a reference to Amended Term Note B. Amended Term Note B is in
substitution and exchange for Term Note B and shall not in any circumstances be
deemed a novation or to have paid, terminated, extinguished or discharged
Code-Alarm's Obligations evidenced by Term Note B all of which Obligations
shall continue under and be evidenced and governed by, Amended Term Note B.
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<PAGE> 9
7. OUT OF FORMULA AMOUNT. As noted in the Recitals, based on
Code-Alarm's Borrowing Base Certificate for the month ended March 31, 1997,
certified by the Chief Financial Officer of Code-Alarm and delivered to NBD,
Code-Alarm acknowledged it has exceeded the Borrowing Base Formula set forth in
the Loan Agreement by $1,847,000. Investigation by NBD has indicated that
rather than the amount set forth in the March 31, 1997 borrowing base
calculation, Code-Alarm has exceeded the Borrowing Base Formula set forth in
the Loan Agreement as of March 31, 1997, by approximately $4,555,583, as
evidenced by the revised March 31, 1997 borrowing base calculation attached
hereto as Exhibit D, as a result of Ineligible Receivables and Ineligible
Inventory (each as defined below) being included in Code-Alarm's March 31, 1997
Borrowing Base Certificate. Consistent with NBD's determination of
eligibility, the Borrowing Base Certificate as of June 2, 1997, certified by
the Chief Financial Officer of Code-Alarm and delivered to NBD, a copy of which
is attached as Exhibit E, indicates that Borrower has exceeded the Borrowing
Base Formula set forth in the Loan Documents by $4,927,000 (the "Out-of-Formula
Amount"). During the Forbearance Period, the amount by which Code-Alarm
exceeds the Borrowing Base Formula set forth in the Loan Agreement shall not be
greater than $5,300,000 (the "Out-of-Formula Cap") minus the aggregate of all
Out-of-Formula Paydowns (as defined immediately below). During the Forbearance
Period the following shall be applied to permanently reduce the Out-of-Formula
Cap (the "Out-of-Formula Paydowns"), until the Out-of-Formula Amount has been
eliminated for a period of 30 consecutive days, so long as such Out-of-Formula
Amount remains eliminated and there are no other Events of Default under the
Loan Documents, including this Agreement at which point no Out-of-Formula
borrowing shall be permitted and the Out-of-Formula Cap shall be eliminated:
(i) Cash payments of $30,000 per week to be made by
Code-Alarm to NBD on the last business day of each week, effective the
week beginning June 2, 1997.
(ii) 100% of all amounts collected by Code-Alarm each
week with respect to the Pre-Agreement Ineligibles as defined below, on
the last business day of the next week. For all purposes herein,
Pre-Agreement Ineligibles are any Ineligible Receivables that existed as
of March 31, 1997, including those set forth on Exhibit D and that have
been previously reported to NBD as eligible for borrowing purposes.
Notwithstanding the foregoing, Code-Alarm may hold any collections of
Pre-Agreement Ineligibles of any customer otherwise required to be
remitted hereunder until the total of collections of such Pre-Agreement
Ineligibles for such customer exceeds $10,000 at which time Code-Alarm
will remit all of such collections to NBD on the last business day of
the week after the week in which such collections exceed $10,000.
(iii) 100% of the proceeds net of unusual costs, approved
by NBD, of sales of inventory by Code-Alarm or any Guarantor, outside of
the ordinary course, immediately upon receipt;
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<PAGE> 10
(iv) 100% of all cash proceeds, net of transaction costs
approved by NBD, from the sale of the stock or assets of any Foreign
Subsidiary, immediately upon receipt;
(v) 80% of all proceeds of tax refunds, including, but
not limited to, refunds for 1996 and earlier tax years immediately upon
receipt; and
(vi) 100% of the proceeds, net of transaction costs
approved by NBD, of all other unusual or extraordinary items, such as
litigation proceeds (whether by settlement or otherwise) received by
Code-Alarm or any Guarantor, immediately upon receipt.
The Parties acknowledge that any transaction described in subparts (iii) and
(iv) of this paragraph is subject to the prior written consent of NBD.
8. BORROWING BASE.
(a) The Loan Agreement is hereby amended to eliminate from the
definition of Eligible Accounts Receivable any account receivable due from any
person located outside the United States, including, without limitation, any
account receivable due from any person located in any territory of the United
States, including such accounts owing to Code-Alarm, any Guarantor or any
Foreign Subsidiary whether or not such accounts are insured (collectively,
"Foreign Accounts"); provided, however, that NBD, in its sole discretion, may,
upon request of Code-Alarm, allow Code-Alarm to include as Eligible Accounts
Receivables, one or more Foreign Accounts which are supported by Letters of
Credit issued to NBD by commercial banks in form and substance acceptable to
NBD.
(b) The Parties acknowledge and agree that in the past, certain
accounts receivable have been included in the Borrowing Base Formula which
accounts receivable did not qualify as "Eligible Accounts Receivable" under the
Loan Agreement, including, without limitation, those categories of receivables
described on Exhibit F. The Parties also acknowledge and agree that NBD has
informed them that NBD believes that in the past certain inventory has been
included in the Borrowing Base Formula which inventory NBD believes did not
qualify as "Eligible Inventory" under the Loan Agreement, including, without
limitation, those categories of inventory described on Exhibit F. For
convenience, all accounts receivable and inventory that do not meet the
definition of "Eligible Accounts Receivable" and "Eligible Inventory" under the
Loan Agreement, as amended hereby, including, without limitations, those
categories of receivables and inventory described in Exhibit F, are referred to
herein, collectively, as "Ineligible Receivables" and "Ineligible Inventory."
Without limiting the discretion granted to NBD under the Loan Agreement to
reasonably deem at any time for any reason that certain inventory or accounts
receivable are ineligible, the Parties acknowledge and agree that the items set
forth on Exhibit F shall be Ineligible Accounts Receivable and Ineligible
Inventory, notwithstanding that certain of such receivables or inventory may
have been included in the Borrowing Base in the past.
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(c) The Parties acknowledge and agree that in the past, certain
advances may have been made to Code-Alarm, even though Code-Alarm did not have
availability under the Borrowing Base Formula set forth in the Loan Agreement
("Out-of-Formula Advances"). The Parties acknowledge and agree that
notwithstanding that certain Out-of-Formula Advances may have been made in the
past, NBD had and continues to have no obligation to make any Out-of-Formula
Advances, and any Out-of-Formula Advance permitted by NBD in the future shall
be in NBD's sole and absolute discretion and shall not give rise to a right or
expectation on the part of the Parties' to similar Out-of-Formula Advances at
any time in the future. The Parties acknowledge and agree that it is NBD's
current intention not to make any Out-of-Formula Advances, over and above the
Provisional Out-of-Formula or the Revised Out-of-Formula Amount, if applicable,
each as reduced from time to time by the Out-of-Formula Paydowns.
9. CONSULTANT. The Parties acknowledge that counsel for NBD has
hired a financial consultant (the "Consultant") to assist such counsel in its
evaluation of Code-Alarm's financial condition and Code-Alarm's relationship
with NBD. The Parties shall provide the Consultant access to Code-Alarm's and
its subsidiaries' facilities, books and records and shall cooperate in good
faith with the Consultant and shall cause Code-Alarm's and its subsidiaries'
outside accountants (the "CPA") to cooperate in good faith in connection with
the provision of all information requested by the Consultant (including copies
of all information in the CPA's possession relating to Code-Alarm and its
subsidiaries, other than information that is proprietary to the CPA) and in
such Consultant's review of Code-Alarm.
10. ADDITIONAL AND AMENDED COVENANTS; REPRESENTATIONS.
(a) In addition to the covenants already contained in the Loan
Documents, the Parties agree that the Loan Documents are hereby amended to
include the following covenants:
(i) Except as specifically provided herein or ordinary
course advances to employees, from and after May 1, 1997, neither
Code-Alarm nor any Guarantor shall make any loan or advance to any of
their shareholders or affiliates, including, without limitation, any
Foreign Subsidiary, without the prior written consent of NBD;
(ii) Except for renewal of existing loans or leases,
neither Code-Alarm nor any Guarantor shall incur any obligations for
loans or leases in any fiscal year in excess of $50,000 without the
prior written consent of NBD;
(iii) The Parties shall permit NBD or its agents to
perform audits of the Collateral whenever deemed necessary by NBD.
Code-Alarm shall compensate NBD for all of such audits. NBD shall be
compensated for audits conducted by employees of NBD in accordance with
NBD's schedule of fees, as may be amended from time to time, which
schedule for 1997 is $500 per day per auditor, plus out-of-pocket
expenses;
(iv) The Parties will not permit any tax liens to be
placed on any of Code-Alarm's or any Guarantor's property other than the
Tax Lien;
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(v) The Parties will immediately notify NBD in writing
of any legal proceeding brought by or against Code-Alarm, any Guarantor
or any Foreign Subsidiary;
(vi) Code-Alarm will not include in the Borrowing Base
any Ineligible Receivables or Ineligible Inventory (each as defined
herein) arising from and after May 11, 1997;
(vii) Code-Alarm's year to date cumulative net income
before taxes from North American operations beginning January 1, 1997,
shall not have a negative variance of more than 20% from cumulative
Income Before Taxes from North American operations set forth in the
Consolidated North America Business Plan provided to NBD on May 28, 1997
and attached hereto as Exhibit G, the "Cumulative Net Income Covenant;"
(viii) Neither Code-Alarm nor any Guarantor shall make any
sales to Foreign Subsidiaries from and after April 1, 1997 except on a
cash in advance basis or with respect to a letter of credit acceptable
to NBD in its sole discretion;
(ix) Without NBD's prior written consent, Code-Alarm
shall not sell, lease, transfer, license, or otherwise dispose of, or
permit the sale, lease, license, transfer, assignment or other
disposition of, any of Code-Alarm's or any Guarantor's, or any of their
respective subsidiaries', including without limitation, Foreign
Subsidiaries' assets (including the stock of any Foreign Subsidiary or
any other subsidiary), rights, revenues or property, whether in one or a
series of transactions, other than inventory sold in the ordinary course
of business upon customary credit terms and sales of scrap or obsolete
material or equipment; provided, however, that subject to receipt of the
proceeds of such sale in accordance with Section 7(iv), NBD hereby
consents to the sale of Code-Alarm UK Limited on the terms and
conditions set forth in the now expired April 7, 1997 Term Sheet, a copy
of which is attached as Exhibit H;
(x) During the Forbearance Period, capital expenditures
made by Code-Alarm or any of its Subsidiaries (as defined in the Loan
Agreement) shall not exceed $300,000 on a consolidated basis, provided,
however, that no capital expenditures may be made with respect to the
Foreign Subsidiaries;
(xi) Code-Alarm shall obtain NBD's prior written consent
prior to issuing any new shares of Capital stock or agreeing to any
other form of equity investment in Code-Alarm or any Guarantor or
issuing any subordination debt; and
(xii) By October 31, 1997 Code-Alarm will pay, or enter
into a payment plan approved by the State of Michigan for all unpaid
taxes referenced in the Tax Lien.
(b) Certain of the covenants contained in the Loan Agreement
are hereby amended as follows:
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(i) Section 5.2(f)(iii) of the Loan Agreement is hereby
amended to limit the aggregate outstanding principal amount of
Indebtedness incurred in any fiscal year secured by one or more purchase
money liens to $100,000;
(ii) Section 5.2(g)(vi) of the Loan Agreement is hereby
amended to limit the aggregate amount of permitted purchase money liens
incurred in any fiscal year to $100,000; and
11. ADDITIONAL AND AMENDED REPORTING REQUIREMENTS.
(a) In addition to any reports or information required by the
Loan Documents or this Agreement (which must be provided timely), or that NBD
may hereafter request, the Parties must provide NBD with:
(i) Within three business days of receipt, copies of
written notices of default received from other creditors;
(ii) Within three business days of gaining knowledge
thereof, any adverse information regarding any Party;
(iii) Weekly, by Tuesday of each week, commencing June
16, 1997, cash flow forecasts updated weekly for a rolling eight- week
period;
(iv) Within three business days of gaining knowledge
thereof, a detailed, comprehensive report on any litigation brought by
or against Code-Alarm, any Guarantor or any Foreign Subsidiary;
(v) Within three business days of gaining knowledge
thereof, a report on all significant events in any existing litigation
in which Code-Alarm, any Guarantor or any Foreign Subsidiary is
involved, including court dates and settlement offers;
(vi) Within thirty days after the Effective Date, a
comprehensive detailed case by case summary of all litigation matters in
which Code-Alarm, any Guarantor or any Foreign Subsidiary is involved
(the "Initial Litigation Summary") and thereafter, by the 15th day of
each month, monthly updates of all litigation;
(vii) As soon as it is completed, a copy of the plan
Code-Alarm is required to file with NASDAQ, and immediately upon
receipt, any correspondence with NASDAQ with regard to Code-Alarm's
delisting;
(viii) Within 3 business days after receipt, all documents
pertaining to the filing by EAE of bankruptcy in France, including,
without limitation, all documents, responses, etc. that have already
been filed or that may be filed in connection with the bankruptcy of EAE
in the future.
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(ix) Within 3 business days after receipt, copies of
letters of intent or other written proposals or communications with
respect to the sale of the stock or assets of any Foreign Subsidiary;
(x) Within 3 business days after receipt, copies of all
letters of intent or written proposals with respect to the investment of
additional equity in, or the provision of additional debt to,
Code-Alarm, any Guarantor or any Foreign Subsidiary; and
(xi) By June 16, 1997, a complete list of all account
debtors, together with addresses of such account debtors, of Code-Alarm
and each Guarantor.
(xii) Such other documents, certificates, financial
reports or statements as NBD may reasonably request.
(b) Certain of the reporting requirements in the Loan
Agreement are hereby amended as follows:
(i) Section 5.1(d)(ii) of the Loan Agreement is hereby
amended to provide for delivery of monthly financial statements of
Code-Alarm's consolidated North American operations within 30 days after
the end of each month of Code-Alarm; and to provide for delivery of a
monthly covenant compliance certificate signed by the Chief Financial
Office of Code-Alarm with respect to the Cumulative Net Income Covenant
described in Section 10(a)(vii) hereof within 30 days after the end of
each month of Code-Alarm;
(ii) Section 5.1(d)(iii) of the Loan Agreement is hereby
amended to provide for delivery of monthly consolidated and
consolidating financial statements of Code-Alarm within 45 days after
the end of each month of Code-Alarm and to provide for delivery of
monthly consolidated and consolidating covenant compliance certificates
within 45 days after the end of each month of Code-Alarm;
(iii) Section 5.1(d)(vi) of the Loan Agreement is hereby
amended to provide for delivery weekly, by Tuesday of each week, of a
Borrowing Base Certificate for the prior week, commencing with the week
ending May 31, 1997, in the form of Exhibit I attached hereto; and
(iv) Section 5.1(d)(ix) of the Loan Agreement is hereby
amended to provide for delivery of monthly accounts payable aging,
monthly accounts receivable aging and monthly inventory composition by
location of consolidated North American operation within 15 days after
the end of each month, in form and substance satisfactory to NBD.
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12. DEFAULTS.
(a) In addition to any other Events of Default or defaults
provided for in the Loan Documents, and without waiver of the demand and
discretionary provisions of the Loan Documents, the occurrence of any of the
following constitutes an Event of Default and a default under this Agreement
(and each Loan Document):
(i) If any Party fails to comply with any term or
condition in this Agreement (or any agreement referred to or
incorporated herein) or the Loan Documents (other than the Existing
Defaults) and fails to cure such non-compliance within the applicable
cure period, if any;
(ii) If any material adverse change occurs in
Code-Alarm's financial condition or business prospects;
(iii) If there is a worsening of any of the Existing
Covenant Violations, as defined in paragraph 1 above;
(iv) If any lender, supplier, creditor, lessor, bond
holder or representative thereof (collectively, "Creditor") of any Party
shall receive from Code-Alarm or any Guarantor any prepayments of
obligations, other than retainers for professionals in an amount not to
exceed $75,000;
(v) If any representation or warranty made by any Party
in this Agreement or in connection with the negotiation hereof is untrue
as of the date made;
(vi) If attachment by way of seizure, levy, lien or
otherwise is made of any assets of any one or more of the Parties
totaling more than $10,000, either individually or in the aggregate, and
such seizure, levy, lien, etc. is not released within 10 business days
after its occurrence;
(vii) If there is the filing of any notice of lien, levy
or assessment by any government, department or agency totaling more than
$10,000, either individually or in the aggregate, or any taxes or debts
owing and totaling more than $10,000, either individually or in the
aggregate, become a lien or encumbrance upon any assets of any of the
Parties, and in each case any such lien, levy, assessment or encumbrance
is not released within 10 business days after its filing;
(viii) If Code-Alarm or any Guarantor fails to pay or
cause to be paid when due any and all taxes with respect to their
respective business, totaling more than $10,000, either individually or
in the aggregate, including, without limitation, payroll taxes, personal
property taxes and real property taxes.
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(b) Certain of the Events of Default set forth in the Loan
Agreement are hereby amended as follows:
(i) Section 6.1(e) is hereby amended to provide that
failure to pay any part of the principal of, the premium, if any, or the
interest on, or any other payment of money due under any of Indebtedness
(as defined in the Loan Agreement, but excluding Code- Alarm's trade
debt, even if past due or debt of any European Subsidiary; provided,
however, that NBD is not acknowledging that such debt of any European
Subsidiary was properly incurred under the Loan Documents) other than
Indebtedness under the Loan Agreement, beyond any period of grace, which
individually or together with other such Indebtedness as to which such
failure exists has an outstanding aggregate principal amount in excess
of $50,000, is an Event of Default.
(ii) Section 6.1(f) of the Loan Agreement is amended in
its entirety to read as follows:
"(f) Judgments. One or more judgments or orders for the
payment of money in an aggregate amount of $50,000
shall be rendered against the Company or any
Guarantor or any of their respective Subsidiaries;
provided, however, the Judgment shall not be
considered a default or Event of Default under this
Section 6.1(f), unless the Judgment shall be
modified to provide for the payment of money by the
Company in excess of $5,900,000, plus accrued
interest;"
13. WRITTEN DOCUMENTS CONTROL. The parties acknowledge and agree
that in the past, certain terms and provisions of the Loan Documents have not
been complied with and may have been temporarily waived or modified through
certain temporary oral agreements or waivers among the Parties and NBD. Each
Party acknowledges and agrees that any and all of such oral agreements or
waivers are hereby terminated and each Party's duties, obligations, rights and
responsibilities with respect to the Loan Documents and this Agreement shall be
governed solely in accordance with the terms and conditions of the written
Loan Documents between the parties and NBD, and this Agreement, together with
all written supplements or amendments, thereto or hereto, but exclusive of all
present or future oral agreements between NBD and any one or more of the
Parties. The Parties should hereafter assume that the requirements of the Loan
Documents and this Agreement may be strictly enforced by NBD.
14. BANK ACCOUNTS. On the Effective Date, or as soon thereafter as
practicable, all financial and bank accounts of Code-Alarm and each Guarantor
of any nature, including, without limitation, checking and savings accounts,
time deposit accounts, and operating, and other deposit
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accounts, and money market and other investment accounts other than Tessco's
Payroll account (collectively, the "Bank Accounts"), shall be maintained with
NBD, and Code Alarm shall not maintain any of such accounts, other than
Tessco's payroll accounts, with any other bank, financial institution, or other
third party. Code-Alarm and each Guarantor shall continue to maintain all of
such Bank Accounts with NBD, and will deposit all cash, checks and other funds
received by Code-Alarm and each Guarantor into such Bank Accounts after receipt
until all of the Obligations of Code-Alarm to NBD are paid in full.
15. NO OVERDRAFTS. The Parties acknowledge that, notwithstanding
that NBD may have honored overdrafts in the past, hereafter, neither NBD nor
any of its affiliates will, under any circumstances, honor any checks or other
items presented to NBD or such affiliates for payment for which there are
insufficient available funds in Code-Alarm's accounts and NBD or such
affiliates, as the case may be, may return any such items so presented.
16. AUTHORITY TO DEBIT ACCOUNTS. If any payment called for by the
Loan Documents, this Agreement or any other agreement referred to or
incorporated herein, or any other present or future agreements between NBD or
any other affiliates on the one hand, or any Party on the other hand, is not
paid when and as called for under the terms of such Agreement, then NBD or any
of its affiliates may debit any one or more of any Party's accounts at NBD or
any of its affiliates for such amount. The fact that NBD or any of its
affiliates has debited any such account will in no way waive or diminish any
default for the failure to make such payment when and as due (except in the
case of a payment default where such debit satisfies the amount due in full,
and such debit does not create an overdraft situation resulting in such debit
being reversed).
17. NO FURTHER FORBEARANCE IMPLIED. Each Party acknowledges that NBD
has no obligation to continue making loans or extend the term of the
Forbearance Period or forbear from enforcing its rights and remedies after the
Forbearance Period, and nothing contained herein or otherwise is intended to be
or is a promise or agreement to continue making loans, or extend the term of
the Forbearance Period beyond the expiration thereof. Furthermore, no future
agreement by NBD to continue making loans, or to extend the term of the
Forbearance Period beyond the expiration thereof, or any other agreement, is
valid or enforceable unless it is contained in a written agreement signed by
NBD. ABSENT A WRITTEN AGREEMENT BETWEEN NBD AND THE PARTIES TO THE CONTRARY,
ALL OF THE OBLIGATIONS, EXCLUDING THE OBLIGATIONS UNDER AMENDED TERM NOTE A AND
AMENDED TERM NOTE B, SHALL BE DUE AND PAYABLE IN FULL UPON THE EARLIER OF
DEMAND OR EXPIRATION OF THE FORBEARANCE PERIOD. ABSENT A WRITTEN AGREEMENT
BETWEEN NBD AND THE PARTIES TO THE CONTRARY, AND ABSENT ACCELERATION BY NBD IN
ACCORDANCE WITH THE LOAN DOCUMENTS, ALL OF THE OBLIGATIONS UNDER AMENDED TERM
NOTE A AND AMENDED TERM NOTE B SHALL BE DUE AND PAYABLE IN FULL UPON EXPIRATION
OF THE FORBEARANCE PERIOD.
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18. FORBEARANCE FEE. In consideration for NBD agreeing to forbear
from exercising its rights and remedies under the Loan Documents with respect
to the Existing Defaults as provided herein, Borrowers shall pay to NBD a
forbearance fee in the amount of $75,000 (the "Forbearance Fee"), which shall
be due and payable on the Effective Date.
19. EXPENSES, FEES AND COSTS; INDEMNIFICATION.
(a) Each Party, jointly and severally, shall be responsible
for the payment of all reasonable fees and out-of-pocket disbursements incurred
by NBD, including fees of the Consultant, counsel and court costs, in any way
arising from or in connection with this Agreement, any Collateral, any Loan
Document, any Obligations, or the business relationship between NBD on the one
hand and any one or more of the Parties on the other hand, including, without
limitation: (1) Audit Fees (as defined in Paragraph 21 below); (2) all fees and
expenses (including recording fees and insurance policy fees) of NBD, the
Consultant and counsel for NBD for the preparation, examination, approval,
negotiation, execution and delivery of, or the closing of any of the
transactions contemplated by this Agreement or any of the Loan Documents; (3)
all fees and out-of-pocket disbursements incurred by NBD, including attorneys'
fees and Consultant fees, in any way arising from or in connection with any
action taken by NBD to monitor, advise, administer, enforce or collect any of
the Obligations (including under this Agreement, the Guarantor Loan Documents,
and any other Loan Document, or otherwise) or any other obligations of any one
or more of the Parties, whether joint, joint and several, or several, under
this Agreement, any Loan Document, any other existing or future document or
agreement, or arising from or relating to the business relationship between
NBD, on the one hand, and any one or more of the Parties, on the other hand, or
otherwise securing any of the Obligations, including any actions to lift the
automatic stay or to otherwise in any way monitor or participate in any
bankruptcy, reorganization or insolvency proceeding of any one or more of the
Parties; (4) all expenses and fees (including attorneys' fees and Consultant
fees) incurred in relation to, in connection with, in defense of or in
prosecution of any litigation instituted by any one or more of the Parties,
NBD, or any third party, against or involving NBD arising from, relating to, or
in connection with any of the Obligations, or any one or more of the Parties'
other obligations, this Agreement, any Collateral, any Loan Document, or the
business relationship between NBD, on the one hand, and any one or more of the
Parties, on the other hand, including any so-called "lender liability" action,
any claim and delivery or other action for possession of, or foreclosure on,
any of the Collateral, post-judgment enforcement of any rights or remedies
including enforcement of any judgments, and prosecution of any appeals (whether
discretionary or as of right and whether in connection with pre-judgment or
post-judgment matters); (5) all costs, expenses, and fees incurred by NBD or
its agents in connection with appraisals and reappraisals of all or any of the
Collateral (and each Party must fully cooperate with such appraisers and make
its property available for appraisal in connection with as many appraisals as
NBD may request); (6) all costs, expenses, and fees incurred by NBD or its
counsel in connection with consultants, including, without limitation, the
Consultant, expert witnesses, or other professionals retained by NBD or its
counsel, to assist, advise, or give testimony with respect to any matter
relating to the Collateral, the Obligations, the Loan Documents, the
Guaranties, or the business relationship between NBD, on the one hand, and any
one or more
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of the Parties, on the other hand (and each Party must fully cooperate with
such Consultant, expert witness or other professional and shall make its
premises, books and records, accounting systems, computer systems and other
media for the recordation of information available to such persons); and (7)
all costs, expenses and fees incurred by NBD in connection with any
environmental investigations including, but not limited to, Phase I, Phase II
and Phase III environmental audits (and each Party agrees that NBD or its
agents may enter on its premises at any time to conduct such environmental
investigations). Each Party's agreement, jointly and severally, to be
responsible for NBD's attorneys' fees and costs applies regardless of whether
or not NBD prevails in whole or in part in any action, proceeding, litigation,
or otherwise, and regardless of the nature of any action or litigation or the
theories or bases of recovery or defense. Each Party, jointly and severally,
agrees to indemnify NBD for all Claims (as hereinafter defined) which may be
imposed on, incurred by, or asserted against NBD in connection with this
Agreement, any Loan Document, or the transactions contemplated hereby or
thereby, or the business relationship between NBD, on the one hand, and any one
or more of the Parties, on the other hand.
(b) All of the foregoing costs, expenses, reimbursement
obligations, and indemnification obligations are part of the Obligations and
are secured by all of the Collateral.
(c) "Claims" means any demand, claim, action or cause of
action, damage, liability, loss, cost, debt, expense, obligation, tax,
assessment, charge, lawsuit, contract, agreement, undertaking or deficiency, of
any kind or nature, whether known or unknown, fixed, actual, accrued or
contingent, liquidated or unliquidated (including interest, penalties,
attorneys' fees and other costs and expenses incident to proceedings or
investigations relating to any of the foregoing or the defense of any of the
foregoing), whether or not litigation has commenced.
20. NBD PROFESSIONAL FEES. The Parties acknowledge and agree
that Code-Alarm has not reimbursed NBD for professional fees, including
attorneys' fees and fees of the Consultant (collectively, the "Professional
Fees") in an amount equal to $88,836.12 in the aggregate for Professional Fees
of the Consultant through May 15, 1997 and Professional Fees of NBD's Counsel
through April 30, 1997. Simultaneously with the execution of this Agreement,
Code-Alarm will reimburse NBD for such fees. The Parties agree that from and
after the Effective Date, NBD will automatically debit Borrower's accounts with
NBD for Professional Fees 14 days after request by NBD for payment of such
Professional Fees if such Fees have not been paid.
21. VERIFICATION OF ACCOUNTS/AUDITS. Code-Alarm and Guarantors
agree that, upon the request of NBD, Code-Alarm and Guarantors will cause its
independent certified public accountant to send a letter to and otherwise
contact Code-Alarm's and Guarantors' account debtors to verify account
receivable balances and provide such verification information to NBD. In
addition, NBD and its agents shall be permitted full and complete access to
Code-Alarm's and Guarantor's facilities, and books and records to conduct
audits as often as NBD reasonably desires. The cost of such audits is part of
the Obligations, is secured by all Collateral, and must be paid by Code-Alarm
and Guarantors within twenty (20) days of receipt of an invoice therefor
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(the "Audit Fees"). The Audit Fees are in addition to all other interest,
fees, costs, and expenses provided for in the Loan Documents or this Agreement.
22. OTHER DOCUMENTS. Each Party must execute, or cause to be
executed, any documents reasonably requested by NBD to carry out the intent of
or to implement this Agreement, the Guarantor Loan Documents, or any other Loan
Document.
23. CROSS DEFAULT/CROSS COLLATERALIZATION/REMEDIES. An Event of
Default or a default under this Agreement (or any agreement referred to or
incorporated herein) is an Event of Default or a default under each document
and agreement comprising the Loan Documents (including the Guarantor Loan
Documents), and an Event of Default or a default under any document or
agreement comprising the Loan Documents (including the Guarantor Loan
Documents) is an Event of Default or a default under the terms of this
Agreement (and all agreements referred to or incorporated herein). Immediately
upon the occurrence of an Event of Default under this Agreement, any Loan
Document or any document executed in connection herewith or referenced herein,
and without notice or an opportunity to cure such Event of Default, NBD has the
right to exercise any remedies provided in this Agreement, the Loan Documents,
and under applicable law, and the Forbearance Period will automatically expire
at NBD's election, without further notice and, at NBD's election but without
notice, all of each Party's obligations to NBD (including the Obligations and
the Guarantors' obligations under the Guarantor Loan Documents) will be
immediately due and payable. In any event, from and after the earlier of
expiration of the Forbearance Period or the occurrence of an Event of Default
under this Agreement or any Loan Document, NBD may immediately take action to
enforce its rights and remedies under the Loan Documents (including enforcement
action on account of the Existing Defaults), this Agreement, or applicable law,
including collecting the Obligations and foreclosing on the Collateral. Each
of the Parties acknowledges and agrees that it was and remains each Party's
intent that (subject to applicable notice, cure and grace periods, if any), a
default by any Party under any of its Obligations to NBD shall be deemed to be
a default under each document or agreement evidencing all of the other Parties'
Obligations to NBD, and all Collateral pledged by a Party to secure that
Party's Obligations to NBD also secures all of the other Parties' Obligations
to NBD. Each Party agrees to execute and deliver to NBD any security
agreements, financing statements or other documents NBD may deem necessary or
desirable to effectuate the above-referenced provisions. Absent the prior
occurrence of an Event of Default or prior demand for payment, all Obligations,
and Guarantor's obligations under the Guarantor Loan Documents are due and
payable in full at the expiration of the Forbearance Period.
24. LOAN DOCUMENTS AND GUARANTIES. Except as expressly modified and
amended by the terms of this Agreement, all other terms and conditions of the
Loan Documents (including the Guarantor Loan Documents) remain in full force
and effect and are hereby ratified, confirmed, and approved. If there is an
express conflict between the terms of this Agreement and the terms of the Loan
Documents, the terms of this Agreement govern and control. Without limiting
the generality of the foregoing, each Guarantor acknowledges and agrees that
his or its
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Guaranty extends to cover all of the obligations of Code-Alarm to NBD under
this Agreement and under the Loan Documents.
25. RESERVATION OF RIGHTS/NO WAIVERS. This Agreement grants a
limited forbearance until the expiration of the Forbearance Period on the terms
and conditions set forth in this Agreement. Except for such forbearance
through the expiration of the Forbearance Period, all (a) of NBD's rights and
remedies against each Party and the Collateral are expressly reserved,
including all rights and remedies resulting from, or arising in connection
with, the Existing Defaults; and (b) nothing herein is a waiver of any Existing
Defaults existing as of the date hereof, an agreement to consent to further
worsening of such Existing Defaults, or new Events of Default or defaults, or
in any way prejudices NBD's rights and remedies under the Loan Documents
(including the Guarantor Loan Documents), or applicable law. Further, NBD has
the right to waive any terms, provisions, or conditions in this Agreement or
the Loan Documents in its sole discretion, and any such waiver does not
prejudice, waive, or reduce any other right or remedy which NBD may have
against any one or more of the Parties. No waiver of rights or any condition
of this Agreement, the Loan Documents, or any other agreement by NBD is
effective unless the same is contained in a writing signed by an authorized
agent of NBD.
26. CREDIT INQUIRIES. In the event customers, buyers, investors,
potential alternative financing sources, or other parties ask NBD about the
current lending relationship among NBD and any one or more of the Parties, each
Party agrees that NBD may refer such inquiries to the appropriate Party.
27. ENTIRE AGREEMENT, ETC.
(a) This Agreement and the Exhibits hereto constitute the
Parties' and NBD's entire understanding with respect to the subject matter
hereof. Modifications or amendments to this Agreement must be in writing and
signed by the party to be charged in order to be effective. This Agreement is
governed by the internal laws of the State of Michigan (without regard to
conflicts of law principles). This Agreement is binding on each Party and its
respective successors, assigns, heirs, and personal representatives and shall
inure to NBD's benefit and the benefit of its successors and assigns. If any
provision of this Agreement conflicts with any applicable statute or law, or is
otherwise unenforceable, such offending provision is null and void only to the
extent of such conflict or unenforceability, and is deemed separate from and
does not invalidate any other provision of this Agreement.
(b) This Agreement is being entered into among competent
persons, who are experienced in business and represented by counsel (or who
have had the opportunity to be represented by counsel), and has been reviewed
by the Parties and their counsel, if any. Therefore, any ambiguous language in
this Agreement will not necessarily be construed against any particular party
as the drafter of such language.
(c) This Agreement may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document. All counterparts must be
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construed together to constitute one instrument. Facsimile copies of
signatures are to be treated as original signatures for all purposes.
(d) References in the Loan Documents and all other documents
executed in connection with the Loan Documents (as each of the foregoing is
amended hereby) to the Loan Documents mean the Loan Documents as amended by
this Agreement.
(e) The term "including" means including, without limitation,
and the term "includes" means includes, without limitation.
(f) All headings are inserted for convenience only and do not
affect the construction or interpretation of this Agreement.
28. AMENDMENTS TO, AND ADDITIONAL, REPRESENTATIONS.
(a) The following representations and warranties contained in
the Loan Agreement are hereby amended as follows:
(i) Schedule 4.5 to the Loan Agreement is hereby
deleted and replaced in its entirety with Schedule 4.5 attached hereto.
(ii) The references to December 31, 1995 in Section 4.6
of the Loan Agreement are hereby amended to read "December 31, 1996" and
the reference to March 31, 1996 in Section 4.6 of the Loan Agreement is
hereby amended to read "March 31, 1997." In addition, the words "Except
as set forth on Schedule 4.6" is hereby added to the beginning of the
second to the last sentence of Section 4.6 (Schedule 4.6 is attached
hereto).
(iii) Section 4.9 of the Loan Agreement is amended by
adding the words "Except for unpaid single business taxes in the amount
of $124,323.93 assessed October 23, 1995 or thereafter but prior to May
1, 1997", at the beginning of such section.
(iv) Section 4.15 is hereby amended by adding the words
"Except for the Existing Defaults under the Loan Documents (each as
defined in the Amendment and Forbearance Agreement, dated June 9, 1997,
between the Bank, the Company and the Guarantors)" at the beginning of
each sentence of Section 4.15.
(v) Section 4.16 of the Loan Agreement is hereby
amended by deleting the words "Other than the Judgment" at the end of
such Section and adding the words "Other than as set forth on Schedule
4.16 (Schedule 4.16 is attached hereto).
(b) In addition to the representations and warranties
contained in the Loan Documents, as amended hereby, each Party represents and
warrants to NBD that:
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(i) Code-Alarm's and each Guarantor's execution,
delivery, and performance of this Agreement and all agreements and
documents delivered in connection herewith by Code-Alarm and each
Guarantor have been duly authorized by all necessary corporate action
and do not and will not require any consent or approval of Code-Alarm's
and each Guarantor's respective stockholders, violate any provision of
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to
Code-Alarm or any Guarantor or any of their respective articles of
incorporation or bylaws, or result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which Code-Alarm or any Guarantor is a
party or by which it or their properties may be bound or affected.
(ii) No authorization, consent, approval, license,
exemption of or filing a registration with any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary to the valid execution,
delivery or performance by the Parties of this Agreement and all
agreements and documents delivered in connection with this Agreement.
(iii) This Agreement and all agreements and documents
delivered pursuant hereto by any one or more of the Parties are the
legal, valid and binding obligations of each such Party enforceable
against each such Party in accordance with the terms thereof.
(iv) After giving effect to the amendments contained
herein and effected pursuant hereto, including the amendments to the
representations and warranties in the Loan Agreement described in (a)
above, all representations and warranties contained in the Loan
Documents are true and correct on and as of the date hereof with the
same force and effect as if made on and as of the date hereof.
(v) Except for the Existing Defaults, each Party has
duly and properly performed, complied with and observed each of its
covenants, agreements, and obligations contained in the Loan Documents.
(vi) Code-Alarm's financial statements for the fiscal
year ended December 31, 1996, and Code-Alarm's interim financial
statements for the 3-month period ended March 31, 1997, copies of which
have been furnished to NBD, fairly present Code-Alarm's financial
condition at such dates and the results of Code-Alarm's operations for
the periods indicated, all substantially in accordance with generally
accepted accounting principles applied on a consistent basis.
(vii) No Party has assigned any claim, set off or
defense to any individual or entity.
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(viii) This Agreement and all of the Exhibits and other
written material delivered by any one or more of the Parties to NBD in
connection with the transactions contemplated hereby do not contain any
statement that is false or misleading with respect to any material fact
and do not omit to state a material fact necessary in order to make the
statements therein not false or misleading. There is no additional fact
of which any Party is aware that has not been disclosed in writing to
NBD that materially affects adversely or, so far as each Party can
reasonably foresee, will materially affect adversely, any Party's
financial condition or business prospects.
(ix) All Parties executing this Agreement in a
representative capacity warrant that they have authority to execute this
Agreement and legally bind the entity they represent.
(x) Other than the tax lien referred to in Recital O
(iii), no tax liens have been filed against Code-Alarm.
29. SURVIVAL; RELIANCE. All agreements, representations and
warranties made in this Agreement (and all agreements referred to or
incorporated herein) survive the execution of this Agreement (and all documents
and agreements referred to or incorporated herein). Notwithstanding anything
in this Agreement (or any documents or agreements referred to or incorporated
herein) to the contrary, no investigation or inquiry by NBD (including by its
agents) with respect to any matter which is the subject of any representation,
warranty, covenant or other agreement set forth herein or therein is intended,
nor shall it be interpreted, to limit, diminish or otherwise affect the full
scope and effect of any such representation, warranty, covenant or other
agreement. All terms, covenants, agreements, representations and warranties of
each Party made herein (or in any documents or agreements referred to or
incorporated herein), or in any certificate or other document delivered or to
be delivered pursuant hereto, are deemed to be material and to have been relied
upon by NBD, notwithstanding any investigation heretofore or hereafter made by
NBD or its agents.
30. NOTICES. Any notice or other communication required or
permitted to be given under this Agreement or any of the Loan Documents must be
in writing and delivered personally, telegraphed, telecopied or telexed, or
mailed (by certified or registered mail or by recognized overnight courier),
postage prepaid, and is deemed given when so delivered personally, telegraphed
or telexed, or if mailed, one day after the date of mailing, addressed as
follows (or to any another address as to which any party so advises the other
parties in writing):
(a) If to Code-Alarm or Code-Alarm, Inc.
any Guarantor: 950 East Whitcomb
Madison Heights, Michigan 48071
Attn: Rand Mueller and Craig Camalo
Telecopy: (810) 585-4799
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With a copy to: Pepper, Hamilton and Scheetz
100 Renaissance Center, Suite 3600
Detroit, MI 48243-1157
Attn: Stuart E. Hertzberg
Telecopy: (313) 259-7926
(b) If to NBD: NBD Bank
701 First National Bank
Detroit, MI 48226
Telecopy: (313) 225-4355
Attn: Francelle E. Fulton
First Vice President
With a copy to: Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Telecopy: (313) 962-0176
Attn: Carol A. Clark
31. DISCRETIONARY LOANS; DEMAND OBLIGATIONS. Notwithstanding any
provisions of this Agreement, it is understood and agreed that NBD is at no
time obligated to make any loan, despite compliance with any express conditions
precedent thereto, and NBD may at any time make demand for payment of the
Obligations, notwithstanding that there may then exist no Event of Default or
default. ABSENT PRIOR DEMAND BY NBD, OR A WRITTEN AGREEMENT SIGNED BY NBD TO
THE CONTRARY, ALL OF THE OBLIGATIONS SHALL BE DUE AND PAYABLE IN FULL UPON THE
EXPIRATION OF THE FORBEARANCE PERIOD.
32. IMPAIRMENT OF COLLATERAL. The execution and delivery of this
Agreement (and all agreements and documents referred to herein) does not impair
or affect any other security (by endorsement or otherwise) for the Obligations,
or any one or more of the Parties' other obligations to NBD. No security taken
before or after as security for the Obligations impairs or affects this
Agreement (or any agreement or document referred to herein). All present and
future additional security is to be considered as cumulative security.
33. TIME IS OF THE ESSENCE. Each Party acknowledges and agrees that
time is of the essence as to each and every term and provision of this
Agreement and each Loan Document.
34. ADVERSE EVENTS. Promptly upon gaining knowledge thereof or at
such time as any Party should have known thereof, each Party must inform NBD of
the occurrence of any Event of Default, or default, or any event which with the
lapse of time or service of notice or both would constitute an Event of Default
or default under this Agreement or any of the Loan Documents, or of any other
occurrence which has or could reasonably be expected to have a materially
adverse effect on any Party's business, properties, or financial condition or
upon any
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Party's ability to comply with its obligations under this Agreement or the Loan
Documents (including the Guarantor Loan Documents).
35. NON-WAIVER. No failure or delay on the part of NBD in the
exercise of any power or right, and no course of dealing between any one or
more of the Parties or any Guarantor and NBD, operates as a waiver of such
power or right, nor shall any single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other power
or right. The remedies provided for herein are cumulative and not exclusive of
any remedies which may be available to NBD at law or in equity. No notice to
or demand on any Party not required hereunder or under the Loan Documents
entitles any such Party to any other or further notice or demand in similar or
other circumstances, or waives NBD's right to any other or further action in
any circumstances without notice or demand. Any waiver of any provision of
this Agreement or the Loan Documents and any consent to any departure by any
one or more of the Parties from the terms of any provision of this Agreement or
the Loan Documents, is effective only if in writing signed by an authorized
officer of NBD, and only in the specific instance and for the specific purpose
for which given.
36. NO OTHER PROMISES OR INDUCEMENTS. There are no promises or
inducements which have been made to any signatory hereto to cause such
signatory to enter into this Agreement other than those which are set forth in
this Agreement.
37. ADDITIONAL AGREEMENTS. Prior to or simultaneously with the
execution and delivery of this Agreement, the Parties shall cause to be
executed and delivered to NBD the following documents:
(a) The Amended Line of Credit Note, in the form attached as
Exhibit A;
(b) The Amended Term Note A, in the form attached as Exhibit B
hereto;
(c) Amended Term Note B in the form attached as Exhibit C
hereto;
(d) A Collateral Assignment of Proprietary Rights and Security
Agreement in the form of Exhibit J attached hereto which Assignment shall be
recorded with the United States Patents Office;
(e) Certificate of Resolutions in the forms attached as
Exhibit K-1, Exhibit K-2, Exhibit K-3, Exhibit K-4 and Exhibit K-5, hereto,
respectively, executed by Code-Alarm, Tessco, Anes, Chapman and Intercept,
respectively;
(f) A check in the amount of $75,000 in payment of Forbearance
Fee;
(g) A check in the amount of $88,836.13 representing unpaid
Professional Fees;
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<PAGE> 27
(h) A covenant compliance certificate for the period ended
December 31, 1996, certified by the Chief Financial Officer of Code-Alarm;
(i) The Borrowing Base Certificate for July, 1996, certified
and/or prepared by the individual who was the Chief Financial Officer of
Code-Alarm as of that date;
(j) The original of the note receivable due and payable from
Falcon or a representation and warranty from Borrower that no note receivable
evidencing Falcon's debt to Borrower exists;
(k) Insurance certificates with respect to the property and
assets of Code-Alarm and each Guarantor naming NBD as Lender Loss Payee;
(l) A copy of the Gain-Sharing Agreement among Code-Alarm and
its employees;
(m) Code-Alarm's consolidated and consolidating financial
statements for the three months ended March 31, 1997 and Covenant Compliance
Certificate for such quarter, certified by the Chief Financial Officer of
Code-Alarm;
(n) Such other financing statements, resolutions, searches and
other documents and agreements reasonably required by NBD, to effectuate the
transactions contemplated by this Agreement.
38. SUBORDINATION AGREEMENTS. ANYTHING CONTAINED IN THIS AGREEMENT
OR IN ANY OTHER AGREEMENT TO THE CONTRARY NOTWITHSTANDING, NOTHING CONTAINED IN
THIS AGREEMENT OR IN ANY OTHER AGREEMENT RESTRICTS OR PROHIBITS NBD'S RIGHT TO
BLOCK, STOP OR PROHIBIT PAYMENTS TO ANY SUBORDINATED CREDITOR(S) ON ACCOUNT OF
THE EXISTING DEFAULTS OR OTHERWISE.
39. PAYMENTS TO SHAREHOLDERS. Effective immediately, all dividends,
distributions and other payments to shareholders, present or future, whether by
way of stock redemption or deferred compensation, principal or interest, shall
cease in their entirety, except for those payments specifically permitted by
this Agreement.
40. STATUTE OF FRAUDS. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. ALL PRIOR AND
CONTEMPORANEOUS ORAL AGREEMENTS, IF ANY, BETWEEN NBD, ON THE ONE HAND, AND ANY
ONE OR MORE OF THE PARTIES, ON THE OTHER HAND, ARE MERGED INTO THIS AGREEMENT
AND DO NOT SURVIVE THE EXECUTION OF THIS AGREEMENT.
27
<PAGE> 28
41. RELEASE. AS OF THE DATE HEREOF EACH PARTY REPRESENTS AND
WARRANTS THAT THEY ARE AWARE OF, AND POSSESS, NO CLAIMS OR CAUSES OF ACTION
AGAINST NBD. NOTWITHSTANDING THIS REPRESENTATION AND AS FURTHER CONSIDERATION
FOR THE AGREEMENTS AND UNDERSTANDINGS HEREIN, EACH PARTY INDIVIDUALLY, JOINTLY,
SEVERALLY, AND JOINTLY AND SEVERALLY, IN EVERY CAPACITY, INCLUDING BUT NOT
LIMITED TO, AS SHAREHOLDERS, OFFICERS, PARTNERS, DIRECTORS, INVESTORS, OR
CREDITORS OF ANY ONE OR MORE OF THE PARTIES, EACH OF THEIR EMPLOYEES, AGENTS,
EXECUTORS, SUCCESSORS AND ASSIGNS, HEREBY RELEASES NBD, ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, SUBSIDIARIES, SUCCESSORS
AND ASSIGNS FROM ANY LIABILITY, CLAIM, RIGHT OR CAUSE OF ACTION WHICH NOW
EXISTS, OR HEREAFTER ARISES, WHETHER KNOWN OR UNKNOWN, ARISING FROM OR IN ANY
WAY RELATED TO FACTS IN EXISTENCE AS OF THE DATE HEREOF. BY WAY OF EXAMPLE AND
NOT LIMITATION, THE FOREGOING INCLUDES ANY CLAIMS IN ANY WAY RELATED TO ACTIONS
TAKEN OR OMITTED TO BE TAKEN BY NBD UNDER THE LOAN DOCUMENTS, THE BUSINESS
RELATIONSHIP WITH NBD AND ALL OTHER OBLIGATIONS OF ANY NATURE OR KIND OF ANY
ONE OR MORE OF THE PARTIES, ANY ORAL AGREEMENTS OR UNDERSTANDINGS (ACTUAL OR
ALLEGED), ANY BANKING RELATIONSHIPS THAT ANY ONE OR MORE OF THE PARTIES HAS OR
MAY HAVE HAD WITH NBD AT ANY TIME AND FOR ANY REASON INCLUDING, BUT NOT LIMITED
TO, DEMAND DEPOSIT ACCOUNTS, OR OTHERWISE.
42. WAIVER OF JURY TRIAL AND BOND; SUBMISSION TO JURISDICTION; AND
ACKNOWLEDGMENT.
(a) ANY JUDICIAL PROCEEDING AGAINST ANY ONE OR MORE OF THE
PARTIES BROUGHT BY NBD WITH RESPECT TO ANY TERM OR CONDITION OF THIS AGREEMENT,
THE LOAN DOCUMENTS OR ANY OTHER PRESENT OR FUTURE AGREEMENT BETWEEN ANY ONE OR
MORE OF THE PARTIES AND NBD MAY BE BROUGHT BY NBD IN A COURT OF COMPETENT
JURISDICTION IN THE STATE OF MICHIGAN, UNITED STATES OF AMERICA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY AND NBD ACCEPT FOR
THEMSELVES AND IN CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER PRESENT AND
FUTURE AGREEMENT BETWEEN ANY ONE OR MORE OF THE PARTIES AND NBD. EACH PARTY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM, AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE BY MAIL OR MESSENGER DIRECTED TO THEM AT
THEIR ADDRESSES SET FORTH IN THIS AGREEMENT. EACH OF THE
28
<PAGE> 29
PARTIES WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND OR SURETY WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF NBD. NOTHING CONTAINED IN THIS
SECTION AFFECTS NBD'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECTS NBD'S RIGHT TO BRING ANY ACTION OR PROCEEDING
AGAINST ANY ONE OR MORE OF THE PARTIES OR ANY ONE OR MORE OF THEIR PROPERTIES
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY PARTY
AGAINST NBD INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS
OR ANY PRESENT OR FUTURE AGREEMENT BETWEEN ANY ONE OR MORE OF THE PARTIES AND
NBD, MUST BE BROUGHT ONLY IN A COURT LOCATED IN THE STATE OF MICHIGAN. EACH
PARTY WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREUNDER OR IN CONNECTION HEREWITH AND MAY NOT ASSERT ANY DEFENSE BASED ON
LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NONCONVENIENS.
(b) EACH PARTY ACKNOWLEDGES THAT (1) IT HAS FULLY READ ALL OF
THIS AGREEMENT AND HAS BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL AND
OTHER ADVISORS OF ITS CHOICE, AND AFTER CONSULTING WITH SUCH COUNSEL OR
ADVISORS, KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS, COERCION, UNLAWFUL
RESTRAINT, INTIMIDATION OR COMPULSION, ENTERS INTO THIS AGREEMENT, BASED UPON
SUCH ADVICE AND COUNSEL AND IN THE EXERCISE OF ITS BUSINESS JUDGMENT, (2) THIS
AGREEMENT HAS BEEN ENTERED INTO IN EXCHANGE FOR GOOD AND VALUABLE
CONSIDERATION, RECEIPT OF WHICH THE PARTIES HERETO ACKNOWLEDGE, (3) IT HAS
CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT
AND IS NOT RELYING ON THE OPINIONS OR ADVICE OF NBD OR ITS AGENTS OR
REPRESENTATIVES IN ENTERING INTO THIS AGREEMENT.
(c) THE PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY
JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED. NBD AND
EACH PARTY EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL
RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENTS BETWEEN ANY OF THE
PARTIES. NO PARTY WILL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT OF THIS
WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN INSTRUMENT
SIGNED BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL BE CHARGED. EACH PARTY
AND NBD AGREE THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER
OF
29
<PAGE> 30
THEIR RIGHT TO TRIAL BY JURY AND THE OTHER AGREEMENTS SET FORTH IN THIS
AGREEMENT.
IN WITNESS WHEREOF, NBD AND THE PARTIES HAVE SIGNED THIS AGREEMENT AS OF
THE EFFECTIVE DATE.
WITNESS NBD BANK
By: /s/ Francelle E. Fulton
----------------------------------
/s/ Steven G. Howell Name: Francelle E. Fulton
- ---------------------------------- ----------------------------
Steven G. Howell
Title: First Vice President
---------------------
[signatures continued on following page]
30
<PAGE> 31
[signatures continued from previous page]
WITNESS CODE-ALARM, INC.
/s/ Dennis Kayes By: /s/ Rand Mueller
- ---------------------------------- ------------------------------------
Dennis Kayes Name: Rand Mueller
-----------------------------
Title: President
----------------------
Subscribed and sworn to before me this 11th day of June, 1997.
_______________________________________
Notary Public, _____________ County, MI
My Commission Expires: ________________
WITNESS TESSCO GROUP, INC.
/s/ Dennis Kayes By: /s/ Rand Mueller
- ---------------------------------- ------------------------------------
Dennis Kayes Name: Rand Mueller
-----------------------------
Title: President
----------------------
Subscribed and sworn to before me this 11th day of June, 1997.
_______________________________________
Notary Public, _____________ County, MI
My Commission Expires: ________________
[signatures continued on following page]
31
<PAGE> 32
[signatures continued from previous page]
WITNESS CHAPMAN SECURITY SYSTEMS, INC.
/s/ Dennis Kayes By: /s/ Rand Mueller
- ---------------------------------- ------------------------------------
Dennis Kayes Name: Rand Mueller
-----------------------------
Title: President
----------------------
Subscribed and sworn to before me this 11th day of June, 1997.
________________________________
Notary Public, _______County, MI
My Commission Expires: _________
WITNESS ANES, INC. D/B/A ANES SECURITY, INC.
/s/ Dennis Kayes By: /s/ Rand Mueller
- ---------------------------------- ------------------------------------
Dennis Kayes Name: Rand Mueller
-----------------------------
Title: President
----------------------
Subscribed and sworn to before me this 11th day of June, 1997.
___________________________________
Notary Public, _________ County, MI
My Commission Expires: ____________
[signatures continued on following page]
32
<PAGE> 33
[signatures continued from previous page]
WITNESS INTERCEPT SYSTEMS, INC.
/s/ Dennis Kayes By: /s/ Rand Mueller
- ---------------------------------- ------------------------------------
Dennis Kayes Name: Rand Mueller
-----------------------------
Title: President
----------------------
Subscribed and sworn to before me this 11th day of June, 1997.
___________________________________
Notary Public, _________ County, MI
My Commission Expires: ____________
33
<PAGE> 34
SCHEDULES AND EXHIBITS
Schedules
Schedule 4.5: Litigation
Schedule 4.6: Developments since December 31, 1996
Schedule 4.16 Material Adverse Events
Exhibits
Exhibit A: Amended Revolving Credit Note
Exhibit B: Amended Term Note A
Exhibit C: Amended Term Note B
Exhibit D: Revised March 31, 1997 Borrowing Base Calculation
Exhibit E: June 2, 1997 Borrowing Base Certificate
Exhibit F: Ineligible Accounts Receivable and Ineligible Inventory
Exhibit G: Consolidated North America Business Plan
Exhibit H: April 7 Term Sheet
Exhibit I: Borrowing Base Certificate Template
Exhibit J: Collateral Assignment of Proprietary Rights and Security Agreement
Exhibit K-1: Certificate of Resolution of Code-Alarm
Exhibit K-2: Certificate of Resolution of Tessco
Exhibit K-3: Certificate of Resolution of Anes
Exhibit K-4: Certificate of Resolution of Chapman
Exhibit K-5: Certificate of Resolution of Intercept
34
<PAGE> 35
COUNSEL'S ACKNOWLEDGMENT
I have represented the Parties in negotiating and executing the
foregoing Amendment and Forbearance Agreement. I have explained the legal
effect and ramifications of the Agreement to my clients. I am of the opinion
that (1) the Agreement is valid, enforceable and binding according to its
terms, subject to the effect of any applicable bankruptcy, insolvency,
moratorium, reorganization, or other similar laws affecting creditors' rights
generally, and to general principals of equity, and (2) the Parties I represent
executing this agreement in representative capacities are authorized to do so.
/s/ Stuart E. Hertzberg
--------------------------------------
Stuart E. Hertzberg
35
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 170
<SECURITIES> 0
<RECEIVABLES> 7463
<ALLOWANCES> 335
<INVENTORY> 7024
<CURRENT-ASSETS> 17875
<PP&E> 10860
<DEPRECIATION> 7785
<TOTAL-ASSETS> 24902
<CURRENT-LIABILITIES> 22447
<BONDS> 744
0
0
<COMMON> 12213
<OTHER-SE> (10502)
<TOTAL-LIABILITY-AND-EQUITY> 24902
<SALES> 12639
<TOTAL-REVENUES> 12639
<CGS> 7820
<TOTAL-COSTS> 7820
<OTHER-EXPENSES> 4157
<LOSS-PROVISION> 20
<INTEREST-EXPENSE> 376
<INCOME-PRETAX> 286
<INCOME-TAX> 0
<INCOME-CONTINUING> 286
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 286
<EPS-PRIMARY> .12
<EPS-DILUTED> .12
</TABLE>
