EXHIBIT 10 (V)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of the 20th day of September, 1996, by and among AAI CORPORATION, a Maryland
corporation ("Borrower"), AAI SYSTEMS MANAGEMENT, INC., a Maryland corporation
("Systems"), AAI/ACL TECHNOLOGIES, INC., a Maryland corporation
("Technologies"), AAI ENGINEERING SUPPORT, INC., a Maryland corporation
("Engineering"), AAI CALIFORNIA CARSHELL, INC., a Maryland corporation
("Carshell"), AAI MEDICAL CORPORATION, a Maryland corporation ("Medical"),
UIC-DEL. CORPORATION, a Delaware corporation ("UIC-DEL"), AAI INTERNATIONAL,
INC., a Delaware corporation ("International"), AAI MICROFLITE SIMULATION
INTERNATIONAL CORPORATION, a Maryland corporation ("Microflite"), SETI, INC., a
Pennsylvania corporation ("Seti"), SYMTRON SYSTEMS, INC., a New Jersey
corporation ("Symtron"), UNITED INDUSTRIAL CORPORATION, a Delaware corporation
("UIC") (Systems, Technologies, Engineering, Carshell, Medical, UIC-DEL,
International, Microflite, Seti, Symtron and UIC being hereinafter collectively
referred to as "Guarantors"), and FIRST UNION COMMERCIAL CORPORATION, as Lender
(in such capacity, "Lender"), as Issuing Bank (in such capacity, "Issuing
Bank"), and as Agent (in such capacity, "Agent"), under the Credit Agreement (as
hereinafter defined).
RECITALS
R-1. Lender is the successor to First Fidelity Bank, National
Association ("FFB") under that certain Credit Agreement dated October 13, 1995,
as modified by First Amendment and Additional Credit Agreement dated October 18,
1995 (collectively, the "Credit Agreement"), among Borrower, FFB, and another
financial institution which subsequently merged into FFB, as a consequence of
which Lender now holds one hundred percent (100%) of the Revolving Credit
Commitments and the Notes, and one hundred percent (100%) of the L/C Commitment.
R-2. Borrower has requested that Lender, Issuing Bank and Agent amend
the Credit Agreement, and Lender, Issuing Bank and Agent have agreed to do so
upon the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises stated, and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms used in this Amendment without
other express definitions being assigned herein, shall have the meanings
assigned to such terms in the
Credit Agreement, giving effect to the modification of the Credit Agreement
contained in Section 2 of this Amendment.
2. Amendment of the Credit Agreement. The Credit Agreement is hereby
amended by amending the definition of "Termination Date" contained in Section 1
to read in its entirety as follows:
"TERMINATION DATE": the earlier of (a) January 17,
1997, or (b) the date which is one hundred fifty (150) days
after the date on which the Agent shall have given written
notice to the Borrower, at the direction of the Required
Lenders and whether or not an Event of Default shall have
occurred, that the Obligations shall be due in full on such
date.
3. Representations and Warranties of Borrower. In order to induce
Lender, Issuing Bank and Agent to enter into this Amendment, Borrower represents
and warrants to Lender, Issuing Bank and Agent that:
(a) Each of Borrower and Guarantors has the power and
authority to execute, deliver and perform this Amendment. Each of Borrower and
Guarantors has taken all necessary action (including, without limitation,
obtaining any required approval of its Board of Directors or stockholders) to
authorize its execution, delivery and performance of this Amendment. No consent,
approval or authorization of, or filing with, any Governmental Authority, and no
consent of any other Person, is required in connection with the execution,
delivery and performance of this Amendment by each of Borrower and Guarantors,
except for those already duly obtained.
(b) This Amendment has been duly executed and delivered by
each of Borrower and Guarantors, and constitutes the legal, valid and binding
obligation of each of Borrower and Guarantors, enforceable against Borrower and
Guarantors in accordance with its terms without defense, setoff or counterclaim.
The execution, delivery and performance of this Amendment by each of Borrower
and Guarantors does not and will not conflict with, or constitute a violation or
breach of, or constitute a default under, or result in the creation or
imposition of any Lien upon any property of Borrower, any Subsidiary of Borrower
or any Guarantor by reason of the terms of (a) any mortgage, lease, agreement,
instrument or Contractual Obligation to which Borrower, any Subsidiary of
Borrower or any Guarantor is a party or which is binding upon it, or (b) any
Requirement of Law.
(c) Each of the representations and warranties of Borrower and
Guarantors contained in the Credit Agreement and the other Credit Documents are
correct and complete in all material respects as of the date hereof.
(d) There has not occurred any material adverse change in the
business, operations, assets or financial or other condition of Borrower or UIC
from those indicated in the last financial statements delivered to Agent
pursuant to Subsection 6.1 of the Credit Agreement.
(e) There exists no Default or Event of Default as of the date
hereof.
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4. Condition to Effectiveness of Amendment. The modification of the
Credit Agreement contained in Section 2 of this Amendment shall be conditioned
upon, and shall not be effective until, the following condition precedent shall
have been satisfied as determined by Agent: As of the date hereof, all
representations and warranties of Borrower and Guarantors contained in the
Credit Agreement, this Amendment and the other Credit Documents shall be correct
and complete in all material respects, and no Default or Event of Default shall
have occurred and be continuing.
5. No Defenses or Claims: Release. In order to induce Lender, Issuing
Bank and Agent to enter into this Amendment, each of Borrower and Guarantors
acknowledges and represents to Lender, Issuing Bank and Agent that it has no
defense, setoff, cause of action or claim of any kind against Lender, Issuing
Bank or Agent on account of actions heretofore taken or not taken by Lender,
Issuing Bank or Agent or otherwise, which can be asserted as a basis to seek
affirmative relief or damages from Lender, Issuing Bank or Agent or to reduce or
eliminate any obligations of Borrower or such Guarantor to Lender, Issuing Bank
or Agent. Each of Borrower and Guarantors, on behalf of itself and its
successors and assigns, hereby forever and irrevocably releases Lender, Issuing
Bank and Agent, and each of their employees, officers, agents, attorneys,
successors and assigns, from any and all claims, demands, damages, liabilities,
obligations, penalties, suits and causes of action of any kind relating to,
resulting from or arising out of any fact, matter or occurrence known to
Borrower or any of Guarantors existing as of, or occurring prior to, the date of
this Amendment directly or indirectly relating to, resulting from or arising out
of any Revolving Credit Loans or Letters of Credit, any of the Credit Documents
or any obligations of Borrower or such Guarantor to Lender, Issuing Bank or
Agent.
6. Consents of Guarantors. Each of Guarantors hereby consents to the
modification of the Credit Agreement provided for in this Amendment.
7. No Novation or Waiver. Borrower, Guarantors, Lender, Issuing Bank
and Agent intend that the execution and delivery of this Amendment shall not
constitute or be construed to operate as a novation of the Credit Agreement, the
Notes, the Deed of Trust, the Guaranty, the Borrower Security Agreement, the
Borrower Pledge Agreement, the Intellectual Property Assignments, the Guarantor
Security Agreement, the UIC Pledge Agreement, the UIC Subordination Agreement,
the UIC-DEL Subordination Agreement, the L/C Agreements or any other of the
Credit Documents or any obligations of Borrower or Guarantors evidenced by any
of the Credit Documents or as a novation of any security interests or other
Liens directly or indirectly securing any of such obligations. Nothing contained
in this Amendment or in any prior oral or written communications from or on
behalf of Lender, Issuing Bank or Agent to Borrower or any of Guarantors shall
constitute or be construed to operate as a waiver by Lender, Issuing Bank or
Agent of any Defaults or Events of Default which have occurred. Nor shall
anything contained in this Amendment or in any prior oral or written
communications from or on behalf of Lender, Issuing Bank or Agent to Borrower or
any of Guarantors constitute or be construed to operate as a waiver by Lender,
Issuing Bank or Agent of any rights or remedies heretofore or hereafter
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accruing to Lender, Issuing Bank or Agent on account of any such Default or
Event of Default or any other Default or Event of Default.
8. Expenses. Whether or not the transactions contemplated hereby are
consummated, Borrower shall pay to Agent on demand all out-of-pocket costs and
expenses that Agent has paid or incurred or subsequently pays or incurs in
connection with the negotiation, preparation, consummation and administration of
this Amendment, all as further provided in Subsection 10.6 of the Credit
Agreement.
9. Ratification of Documents and Obligations. Borrower, Guarantors,
Lender, Issuing Bank and Agent hereby ratify and confirm the Credit Agreement
(as amended pursuant hereto), the Notes, the Deed of Trust, the Borrower
Security Agreement, the Borrower Pledge Agreement, the Guaranty, the
Intellectual Property Assignments, the Guarantor Security Agreement, the UIC
Pledge Agreement, the UIC Subordination Agreement, the UIC-DEL Subordination
Agreement, the L/C Agreements and the other Credit Documents, and agree that the
same, and all obligations of the parties thereunder, shall remain in full force
and effect.
10. Binding Nature, Merger, Counterparts and Choice of Law. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and each reference in this
Amendment to any of the parties hereto shall be deemed to include the successors
and assigns of such party. This Amendment contains the entire agreement of the
parties with respect to the matters covered and the transactions contemplated
hereby and thereby, and no agreement, statement or promise made by any party, or
by any employee, officer, agent or attorney of any party, which is not contained
herein or therein, shall be valid or binding. This Amendment may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same agreement. This
Amendment, and the rights and obligations of the parties hereunder, shall be
governed by, and construed and interpreted in accordance with, the internal laws
of the State of Maryland, exclusive of principles of conflicts of laws.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed or caused to be
executed this Amendment under seal as of the date first above written.
ATTEST/WITNESS: AAI CORPORATION
AAI SYSTEMS MANAGEMENT, INC.
AAI/ACL TECHNOLOGIES, INC.
AAI ENGINEERING SUPPORT INC.
AAI CALIFORNIA CARSHELL, INC.
AAI MEDICAL CORPORATION
AAI INTERNATIONAL, INC.
AAI MICROFLITE SIMULATION
INTERNATIONAL CORPORATION
SETI, INC.
_____________________________ By:_____________________________(SEAL)
Robert W. Worthing
Vice President, General Counsel
and Secretary of each of the foregoing
corporations
UIC - DEL. CORPORATION
_____________________________ By:_____________________________(SEAL)
Robert W. Worthing
Secretary of the foregoing corporation
UNITED INDUSTRIAL CORPORATION
SYMTRON SYSTEMS, INC.
_____________________________ By:_____________________________(SEAL)
James H. Perry
Chief Financial Officer of each of
the foregoing corporations
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Signatures continued:
FIRST UNION COMMERCIAL
CORPORATION, successor to First Fidelity
Bank, National Association, as Lender, Issuing
Bank and Agent
_____________________________ By:_____________________________(SEAL)
Name:___________________________
Title:__________________________
STATE OF New York , COUNTY OF New York , SS:
I HEREBY CERTIFY that on this 19 day of September, 1996, before me, the
undersigned, a Notary Public of said State, personally appeared Robert W.
Worthing, who acknowledged himself to be the Vice President of each of AAI
CORPORATION, AAI SYSTEMS MANAGEMENT, INC., AAI/ACL TECHNOLOGIES, INC., AAI
ENGINEERING SUPPORT INC., AAI CALIFORNIA CARSHELL, INC., AAI INTERNATIONAL,
INC., AAI MICROFLITE SIMULATION INTERNATIONAL CORPORATION, SETI, INC.,and AAI
MEDICAL CORPORATION, and the Secretary of each of UIC-DEL. CORPORATION and
that he, as such, being authorized so to do, executed the foregoing instrument
for the purposes therein contained.
WITNESS my hand and Notarial Seal.
My comm'n exp.: ___________________ _________________________
Notary Public
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STATE OF New York , COUNTY OF New York , SS:
I HEREBY CERTIFY that on this 19 day of September, 1996, before me, the
undersigned, a Notary Public of said State, personally appeared James H. Perry,
who acknowledged himself to be the Chief Financial Officer of each of SYMTRON
SYSTEMS, INC., and of UNITED INDUSTRIAL CORPORATION, and that he, as such, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained.
WITNESS my hand and Notarial Seal.
My comm'n exp.:____________________ __________________________
Notary Public
STATE OF ___________________, COUNTY OF ___________________, SS:
I HEREBY CERTIFY that on this ____ day of _______________, 1996, before
me, the undersigned, a Notary Public of said State, personally appeared
________________________, who acknowledged himself/herself to be the
________________________ of FIRST UNION NATIONAL BANK, and that he/she, as such,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained.
WITNESS my hand and Notarial Seal.
My comm'n exp.: ______________ __________________________________
Notary Public
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