FIFTH AMENDMENT TO CREDIT AGREEMENT AND NOTE
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT AND NOTE ("Fifth
Amendment"), made and entered into as of the 17th day of August
1995, by and between DATRON SYSTEMS INCORPORATED, a Delaware
corporation ("Company"), and UNION BANK, a California banking
corporation ("Bank"),
W I T N E S S E T H:
WHEREAS, on May 11, 1994, the Company and the Bank entered
into a certain Credit Agreement and Note (as amended by those
certain First, Second, Third and Fourth Amendments to Credit
Agreement and Note, dated as of October 26, 1994, December 29,
1994, February 28, 1995 and March 31, 1995, respectively, the
"Credit Agreement") pursuant to which the Bank agreed to extend to
the Company and the Company agreed to accept from the Bank certain
credit facilities more particularly described therein; and
WHEREAS, the Company and the Bank desire to amend the Credit
Agreement (i) to extend the Facilities Termination Date through and
including December 31, 1997, (ii) to increase availability under
the Standby Facility from Fifteen Million Dollars ($15,000,000.00)
to Eighteen Million Dollars ($18,000,000.00), (iii) to reduce the
rate of interest payable with respect to Revolving Loans under the
Revolving Loan Facility, and (iv) to provide for certain ancillary
matters;
NOW, THEREFORE, for and in consideration of the premises
hereof, and other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. All capitalized terms used in this Fifth Amendment
shall, unless otherwise defined herein or unless the context
otherwise requires, have the meanings given thereto in the Credit
Agreement.
2. Section 1.01 of the Credit Agreement is amended to read
as follows:
1.01 Availability of the Facilities. Subject to the terms and
conditions of this Agreement, the Bank shall, from time to time
during the period commencing on the Fifth Amendment Effective Date
and ending on December 31, 1997 (the "Facilities Termination
Date"), advance to the Company such loans as the Company may
request under the Revolving Loan Facility (individually a
"Revolving Loan" and collectively the "Revolving Loans"), issue for
the account of the Company such standby letters of credit as the
Company may request under the Standby Facility (individually a
"Standby L/C" and collectively the "Standby L/C's"), and issue for
the account of the Company such commercial documentary letters of
credit as the Company may request under the L/C Facility
(individually a "Commercial L/C" and collectively the "Commercial
L/C's"); provided, however, that:
(a) The principal amount of all Revolving Loans shall not
exceed Eight Million Five Hundred Thirty-five Thousand Dollars
($8,535,000.00) in the aggregate at any one time outstanding (the
"Revolving Loan Commitment");
(b) Except as otherwise provided in Subsections 1.01(c),
(d) and (e) hereof, the sum of:
(i) the aggregate amount available to be drawn under all
Standby L/C's;
(ii) the aggregate amount of unpaid reimbursement obligations
in respect of all drafts drawn under Standby L/C's (the sum of the
aggregate amounts described in Subsection 1.01(b)(i) hereof and in
this Subsection 1.01(b)(ii) being hereinafter referred to as
"Standby L/C Utilization");
(iii) the aggregate amount available to be drawn under all
Commercial L/C's; and
(iv) the aggregate amount of unpaid reimbursement obligations
in respect of all drafts drawn under Commercial L/C's (the sum of
the aggregate amounts described in Subsection 1.01(b)(iii) hereof
and in this Subsection 1.01(b)(iv) being hereinafter referred to as
"Commercial L/C Utilization");
shall not exceed in the aggregate at any one time Eighteen Million
Dollars ($18,000,000.00);
(c) Commercial L/C Utilization shall not exceed in the
aggregate at any one time the lesser of (i) Two Million Dollars
($2,000,000.00), or (ii) the difference between Eighteen Million
Dollars ($18,000,000.00) and Standby L/C Utilization;
(d) Standby L/C Utilization relating to Standby L/C's
issued in favor of beneficiaries located in countries listed in
Column B or Column C of Exhibit A hereto shall not exceed, as to
all beneficiaries located in any given country listed in Column B
or Column C of Exhibit A hereto, Three Million Five Hundred
Thousand Dollars ($3,500,000.00) in the aggregate at any one time;
and
(e) Standby L/C Utilization relating to Standby L/C's
issued in favor of beneficiaries located in countries listed in
Column D of Exhibit A hereto (individually a "Column D Country" and
collectively the "Column D Countries") shall not exceed in the
aggregate at any one time (i) in the case of all beneficiaries
located in any given Column D Country, Five Hundred Thousand
Dollars ($500,000.00), and (ii) in the case of all beneficiaries
located in all Column D Countries, the lesser of (A) Two Million
Five Hundred Thousand Dollars ($2,500,000.00), or (B) the
difference between (1) Eighteen Million Dollars ($18,000,000.00),
and (2) the sum of (I) Standby L/C Utilization relating to Standby
L/C's issued in favor of all beneficiaries located in all countries
other than Column D Countries, and (II) Commercial L/C Utilization.
Within the limits set forth above, and except as otherwise provided
herein, the Company may utilize the Facilities, repay amounts owing
thereunder, and reutilize the Facilities.
3. Subsection 1.02(d) of the Credit Agreement is amended
to read as follows:
(d) Revolving Loan Interest Rate Options. The Company shall
pay interest on the unpaid principal amount of each Revolving Loan
from the date of such loan (if such loan is made on or after the
Fifth Amendment Effective Date), from the Fifth Amendment Effective
Date (if such loan is a Reference Rate Revolving Loan made prior to
the Fifth Amendment Effective Date), or from the first day of the
first Interest Period for such loan which commences on or after the
Fifth Amendment Effective Date (if such loan is a LIBOR Revolving
Loan made prior to the Fifth Amendment Effective Date), until the
maturity thereof (whether by acceleration or otherwise), at one of
the following rates per annum:
(i) Reference Rate Option - During such periods as such
Revolving Loan is a Reference Rate Revolving Loan, a rate per annum
equal to the Reference Rate plus one-half of one percent (1/2 of
1%), such rate to change from time to time as the Reference Rate
shall change; or
(ii) LIBO Rate Option - During such periods as such Revolving
Loan is a LIBOR Revolving Loan, a rate per annum equal at all times
during each Interest Period for such loan to the LIBO Rate for such
Interest Period plus one and one-half percent (1-1/2%).
Each Revolving Loan shall, at any given time prior to maturity,
bear interest at one, and only one, of the above rates.
4. The first sentence of Subsection 1.05(c) of the Credit
Agreement is amended to read as follows:
All amounts due or to become due hereunder are secured by (i) a
Security Agreement (Chattel Mortgage), dated April 21, 1994,
executed by the Company, (ii) a Continuing Guaranty, dated August
1, 1995, executed by Datron/Transco Inc. ("D/T"), which Continuing
Guaranty is in turn secured by (A) a Security Agreement (Chattel
Mortgage), dated April 21, 1994, executed by D/T, and (B) a Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated February 28, 1995, executed by D/T, as amended, and (iii) a
Continuing Guaranty, dated August 1, 1995, executed by Datron World
Communications Inc. (formerly known as Trans World Communications,
Inc.) ("DWC"), which Continuing Guaranty is in turn secured by a
Security Agreement (Chattel Mortgage), dated March 31, 1995,
executed by DWC.
5. Section 7.01 of the Credit Agreement is amended by the
addition thereto of the following definitions in proper alphabetic
order:
"Fifth Amendment" shall mean that certain Fifth Amendment to Credit
Agreement and Note, dated as of August 17, 1995, by and between the
Company and the Bank.
"Fifth Amendment Effective Date" shall mean the date on which the
Fifth Amendment becomes effective as provided in Paragraph 6
thereof.
"First Amendment to Deed of Trust" shall have the meaning given to
that term in Subparagraph 6(h) of the Fifth Amendment.
6. This Fifth Amendment shall become effective on the date
on which the Bank shall have received the following:
(a) This Fifth Amendment, duly executed by the Company;
(b) A certificate of the Company's secretary or an
assistant secretary, dated not later than the date of this Fifth
Amendment, certifying the following documents, copies of which
shall be attached to or incorporated in such certificate: (i)
resolutions, adopted by the Company's Board of Directors and
continuing in effect, which authorize the execution, delivery and
performance by the Company of this Fifth Amendment and all other
documents and instruments to be executed, delivered and performed
by the Company in connection herewith; and (ii) all other documents
evidencing additional corporate action and governmental or other
approvals, if any, necessary for the execution, delivery and
performance by the Company of this Fifth Amendment and all other
documents and instruments to be executed, delivered and performed
by the Company in connection herewith;
(c) A certificate of the Company's secretary or an
assistant secretary, dated not later than the date of this Fifth
Amendment, certifying the incumbency and signatures of the officers
of the Company authorized to execute, deliver and perform on behalf
of the Company this Fifth Amendment and all other documents and
instruments to be executed, delivered and performed by the Company
in connection herewith;
(d) A Continuing Guaranty on the Bank's standard form,
dated not later than the date of this Fifth Amendment and duly
executed by DWC;
(e) A Judicial Reference Agreement on the Bank's standard
form, dated not later than the date of this Fifth Amendment and
duly executed by DWC;
(f) A Continuing Guaranty on the Bank's standard form,
dated not later than the date of this Fifth Amendment and duly
executed by D/T;
(g) A Judicial Reference Agreement on the Bank's standard
form, dated not later than the date of this Fifth Amendment and
duly executed by D/T;
(h) A First Amendment to Deed of Trust, Assignment of
rents, Security Agreement and Fixture Filing in the form appended
to this Fifth Amendment as Exhibit I ("First Amendment to Deed of
Trust"), dated the date of the Continuing Guaranty of D/T referred
to in Subparagraph 6(f) of this Fifth Amendment and duly executed
and acknowledged by D/T, reflecting the supersession and
replacement of the Continuing Guaranty of D/T, dated February 28,
1995, with the Continuing Guaranty of D/T referred to in
Subparagraph 6(f) of this Fifth Amendment, together with evidence
that the First Amendment to Deed of Trust has been duly recorded;
(i) A 110.5 endorsement to the ALTA policy of title
insurance delivered to the Bank pursuant to Subparagraph 10(j) of
the Third Amendment, insuring that the interest of the Bank under
the Deed of Trust as amended by the First Amendment to Deed of
Trust is and continues to be a valid, perfected and enforceable
lien on the Property subject to no mortgages, deeds of trust,
liens, charges, security interests or other encumbrances of any
character whatsoever other than liens for current real property
taxes and assessments not yet due and payable and such other liens
and encumbrances as may be approved in writing by the Bank;
(j) A certificate of the secretary or an assistant
secretary of each of D/T and DWC, each dated not later than the
date of this Fifth Amendment, certifying the following documents,
copies of which shall be attached to or incorporated in such
certificate: (i) resolutions, adopted by the Board of Directors of
D/T or DWC, as the case may be, and continuing in effect, which
authorize the execution, delivery and performance by D/T or DWC, as
the case may be, of such corporation's Continuing Guaranty and
Judicial Reference Agreement (and, in the case of D/T, the First
Amendment to Deed of Trust); and (ii) all other documents
evidencing additional corporate action and governmental or other
approvals, if any, necessary for the execution, delivery and
performance by D/T or DWC, as the case may be, of such
corporation's Continuing Guaranty and Judicial Reference Agreement
(and, in the case of D/T, the First Amendment to Deed of Trust);
together with a certificate of the secretary or an assistant
secretary of each of D/T and DWC, each dated not later than the
date of this Fifth Amendment, certifying the incumbency and
signatures of the officers of D/T or DWC, as the case may be,
authorized to execute, deliver and perform on behalf of D/T or DWC,
as the case may be, such corporation's Continuing Guaranty and
Judicial Reference Agreement (and, in the case of D/T, the First
Amendment to Deed of Trust); and
(k) Such other documents and agreements as the Bank may
reasonably require to effectuate the intent and purpose of this
Fifth Amendment.
7. Except as expressly provided herein, the Credit
Agreement is unchanged and remains in full force and effect.
8. This Fifth Amendment shall be governed by and construed
in accordance with the laws of the State of California.
9. This Fifth Amendment may be executed in any number of
identical counterparts, any set of which signed by both parties
hereto shall be deemed to constitute a complete, executed original
for all purposes.
IN WITNESS WHEREOF, the Bank and the Company have caused this
Fifth Amendment to be executed as of the day and year first above
written.
UNION BANK DATRON SYSTEMS INCORPORATED
By: /s/ RICHARD C. PETRIE By: /s/ WILLIAM L. STEPHAN
Title:Vice President Title: Vice President and CFO
By:/s/ JOSEPH OTTING By:/s/ DAVID A. DERBY
Title:S.V.P. Title:President, CEO
EXHIBIT I
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Union Bank
Commercial Documentation Center
Attn: AREVALOS - 40061
P. O. Box 30115
Los Angeles, California 90030-0115
Assessor's Identification Number: 95000649
FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING ("First Amendment"), made and
entered into as of the 17th day of August, 1995, by and among
DATRON/TRANSCO INC., a California corporation ("Trustor"), UNION
BANK, a California banking corporation (in its capacity as trustee,
"Trustee"), and UNION BANK, a California banking corporation (in
its capacity as beneficiary, "Beneficiary"),
W I T N E S S E T H:
WHEREAS, on February 28, 1995, Trustor entered into that
certain Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing ("Deed of Trust") in favor of Trustee and
Beneficiary, which Deed of Trust was recorded on March 13, 1995, as
Instrument No. 95-027943, in the Official Records of Ventura
County, California, and which Deed of Trust encumbers certain real
property located in the City of Simi Valley, County of Ventura,
State of California, more particularly described in Exhibit "A"
appended thereto; and
WHEREAS Trustor and Beneficiary desire to amend the Deed of
Trust to reflect that certain of the obligations of Trustor to
Beneficiary secured by the Deed of Trust as originally executed
have been superseded and replaced by certain other obligations of
Trustor to Beneficiary more particularly described herein;
NOW, THEREFORE, for and in consideration of the premises
hereof and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is hereby agreed as
follows:
1. Section 2(I) of the Deed of Trust is amended by deleting
the same in its entirety and by substituting in lieu thereof the
following:
(I) Payment of all sums at any time owing and the performance
of all other obligations arising under that certain Continuing
Guaranty in the original principal amount of Twenty-nine Million
and no/100 Dollars ($29,000,000.00), dated August 1, 1995, executed
by Datron/Transco Inc. ("Obligor") to the order of or in favor of
Beneficiary (the "Debt Instrument"), and any and all modifications,
replacements, extensions and renewals thereof, whether hereafter
evidenced by the Debt Instrument or otherwise;
2. Trustor and Beneficiary hereby expressly acknowledge and
agree (a) that the obligations arising under the Continuing
Guaranty which is described in Section 2(I) of the Deed of Trust as
amended by this First Amendment (the "Replacement Guaranty")
supersede and replace, but do not constitute payment, satisfaction
or extinguishment of, the obligations arising under the Continuing
Guaranty in the original principal amount of Twenty-six Million and
no/100 Dollars ($26,000,000.00), dated February 28, 1995, executed
by Trustor to the order of or in favor of Beneficiary which is
described in Section 2(I) of the Deed of Trust as originally
executed (the "Original Guaranty"), and (b) that the Replacement
Guaranty supersedes and replaces but does not constitute payment,
satisfaction or extinguishment of, the Original Guaranty.
3. Trustor hereby expressly agrees that the obligations
arising under the Replacemnt Guaranty shall in all respects be
secured by the Deed of Trust, as amended hereby.
4. Except as otherwise expressly provided herein, the Deed of
Trust is unchanged and remains in full force and effect.
5. Trustee accepts these modifications to the trust when this
First Amendment, duly executed and acknowledged, is made a public
record as provided by law.
IN WITNESS WHEREOF, Trustor and Beneficiary have executed ths
First Amendment as of the date first hereinabove set forth.
DATRON/TRANSCO INC. UNION BANK
By: /s/ DAVID A. DERBY By: /s/ RICHARD A. PETRIE
Title: Chairman Title:
By: /s/ WILLIAM L. STEPHAN By: /s/ JOSEPH OTTING
Title: Asst. Secretary Title: S.V.P.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On August 14, 1995, before me, J. BEUKMAN a Notary Public in
and for said State, personally appeared JOSEPH OTTING AND RICHARD
A. PETRIE, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/ARE
subscribed to the within instrument and acknowledged to me that
he/she/THEY executed the same in his/her/THEIR authorized
capacity(ies), and that by his/her/THEIR signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(graphic Notary Seal) /s/ J. BEUKMAN
J. BEUKMAN Notary Public
COMM #1039373 in and for said State
NOTARY PUBLIC-CALIFORNIA
SAN DIEGO COUNTY
MY COMMISSION EXPIRES
OCTOBER 5, 1988
STATE OF CALIFORNIA )
) ss.
COUNTY OF VENTURA )
On August 17, 1995, before me, E. L. HOWE a Notary Public in
and for said State, personally appeared DAVID A. DERBY AND WILLIAM
L. STEPHAN, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/ARE
subscribed to the within instrument and acknowledged to me that
he/she/THEY executed the same in his/her/THEIR authorized
capacity(ies), and that by his/her/THEIR signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(graphic Notary Seal) /s/ ELLEN L. HOWE
ELLEN L. HOWE Notary Public
COMM #1043039 in and for said State
Notary Public - California
VENTURA COUNTY
MY COMM. Expires OCT 23, 1998