EXHIBIT 10.1

 

SIXTH AMENDMENT TOSECOND AMENDED AND

RESTATED LOAN ANDSECURITY AGREEMENT

 

THIS SIXTH AMENDMENT TOSECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (“Amendment”),dated effective as of April 22, 2002 (the “Amendment Effective Date”), isexecuted and entered into by and among the financial institutions listed on thesignature pages hereof (such financial institutions are referred to hereinindividually as a “Lender” and collectively as the “Lenders”),Bank of America, National Association (in its capacity as agent for theLenders, the “Agent”), and Pentacon, Inc. (the “Parent”) and eachof the other undersigned subsidiaries of the Parent party to the Agreement.

 

RECITALS:

 

A.            The Borrowers, the Lenders, and the Agent are parties tothe certain Second Amended and Restated Loan and Security Agreement, dated asof September 30, 1999, as amended by the First Amendment to Second Amended andRestated Loan and Security Agreement dated effective as of November 15, 1999,the Second Amendment to Second Amended and Restated Loan and Security Agreementdated effective as of December 31, 1999, the Third Amendment to Second Amendedand Restated Loan and Security Agreement dated effective as of September 30,1999, the Fourth Amendment to Second Amended and Restated Loan and SecurityAgreement dated effective as of October 30, 2001, and the Fifth Amendment toSecond Amended and Restated Loan and Security Agreement dated effective as ofMarch 19, 2002 (collectively, the “Agreement”).

 

B.            The Loan Parties, the Lenders and the Agent have agreedto amend the Agreement as provided below.

 

NOW THEREFORE, inconsideration of the premises and the mutual covenants herein contained, theparties hereto hereby agree as follows:

 

ARTICLE 1

# Definitions

 

Section 1.1             Definitions.  Unless otherwise defined in this Amendment,terms defined by the Agreement, where used in this Agreement, shall have thesame meanings in this Amendment as are prescribed by the Agreement.

 

ARTICLE 2

# Amendments

 

Section 2.1             Amendment to Definitions inSection 1.1 of the Agreement. Effective as of the Amendment Effective Date, the definitions of“Commitment Termination Date” and “Stated Termination Date” in Section 1.1of the Agreement are hereby amended and restated to read in their respectiveentireties as follows:

 

“CommitmentTermination Date” means May 29, 2002.

 

“Stated TerminationDate” means May 31, 2002.

 

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ARTICLE 3

# Release

 

Section 3.1             Release.  In consideration of this Amendment, each ofthe Loan Parties on its own behalf and on behalf of their respectiveSubsidiaries, predecessors, successors and assigns (collectively, the “ReleasingParties”), hereby irrevocably and forever releases, remises, discharges andholds harmless the Agent and each Lender and all of their respective officers,directors, employees, agents, attorneys and representatives, and all of theirrespective predecessors, successors, and assigns, from any and all claims,causes of action, demands, and liabilities of any kind whatsoever, if any,whether direct or indirect, fixed or contingent, liquidated or nonliquidated,disputed or undisputed, asserted or non-asserted, known or unknown, which anyof the Releasing Parties has relating in any way to any event, circumstance,occurrence, act, action, or failure to act in connection with or otherwiseconcerning this Agreement, the other Loan Documents or the transactionscontemplated therein from the beginning of time through the Amendment EffectiveDate.

 

ARTICLE 4

# Miscellaneous

 

Section 4.1             Conditions Precedent.  The effectiveness of this Amendment issubject to the satisfaction of each of the following conditions precedent:

 

(a)           The Agent shall have received all ofthe following, each dated the date of this Amendment (unless otherwiseindicated), in form and substance satisfactory to the Agent:

 

(i)            Amendment Documents.  This Amendment and any other agreement,certificate, document, or instrument required by the Agent to be executed ordelivered by any Borrower, the Agent or the Lenders in connection with thisAmendment, in each case duly executed (the “Amendment Documents”);

 

(ii)           Fees and Expenses.  Evidence that costs and expenses (including,without limitation, reasonable attorney’s fees and expenses) incurred by theAgent incident to this Amendment or otherwise required to be paid in accordancewith Section 15.7 of the Agreement, to the extent incurred and submittedto the Borrowers, shall have been paid in full;

 

(iii)          Additional Information.  The Agent shall have received suchadditional documents, instruments, and information as the Agent may reasonablyrequest to effect the transaction contemplated hereby; and

 

(iv)          Consents.  All consents required by Section 13.2of the Agreement shall have been obtained.

 

(b)           The representations and warrantiescontained herein, in the Agreement, and in all other Loan Documents, as amendedhereby, shall be true and correct as of the date hereof as if made on the datehereof (except those, if any, which by their terms specifically relate only toa different date).

 

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(c)           All corporate proceedings taken inconnection with the transactions contemplated by this Amendment and all otheragreements, documents, and instruments executed and/or delivered pursuanthereto, and all legal matters incident hereto, shall be satisfactory to theAgent.

 

(d)           No Default or Event of Default shouldhave occurred and be continuing.

 

Section 4.2             Representations and Warranties.  The Borrowers hereby represent and warrantto, and agree with, the Agent, for the benefit of the Lenders, that, as of thedate of and after giving effect to this Amendment, (a) the execution, delivery,and performance of this Amendment and any and all other Amendment Documentsexecuted and/or delivered in connection herewith have been authorized by allrequisite corporate action on the part of each of the Borrowers (as applicable)and will not violate any of such Borrower’s certificate of incorporation orbylaws, (b) all representations and warranties set forth in the Agreement andin any other Loan Document are true and correct as if made again on and as ofsuch date (except those, if any, which by their terms specifically relate onlyto a different date) in the Agreement, (d) no Default or Event of Default hasoccurred and is continuing, (e) the Agreement (as amended by this Amendment),and all other Loan Documents are and remain legal, valid, binding, andenforceable obligations in accordance with the terms thereof, and (f) thecertifications delivered to the Agent under clause (i), clause (ii),clause (iii), and clause (iv) of Section 10.1(a) of theAgreement remain true, correct, and complete as of the Amendment EffectiveDate.

 

Section 4.3             Survival of Representations andWarranties.  All representations andwarranties made in this Amendment or any other Loan Document shall survive theexecution and delivery of this Amendment and the other Loan Documents, and noinvestigation by the Agent or any Lender, or any closing, shall affect therepresentation and warranties or the right of the Agent and the Lenders to relyupon them.

 

Section 4.4             Reference to Agreement.  Each of the Loan Documents, including theAgreement, the Amendment Documents, and any and all other agreements,documents, or instruments now or hereafter executed and/or delivered pursuantto the terms hereof or pursuant to the terms of the Agreement as amendedhereby, are hereby amended so that any reference in such Loan Documents to theAgreement, whether direct or indirect, shall mean a reference to the Agreementas amended hereby.

 

Section 4.5             Severability.  Any provision of this Amendment held by acourt of competent jurisdiction to be invalid or unenforceable shall not impairor invalidate the remainder of this Amendment and the effect thereof shall beconfined to the provision so held to be invalid or unenforceable.

 

Section 4.6             Successors and Assigns.  This Amendment is binding upon and shallinure to the benefit of the Agent, the Lenders, the Borrowers, and theirrespective successors and assigns, except no Borrower may assign or transferany of its rights or obligations hereunder without the prior written consent ofthe Agent and the Lenders.

 

Section 4.7             General.  This Amendment, when signed by eachsignatory as required by the Agreement (a) shall be deemed effective prospectivelyas of the Amendment Effective Date, (b) contains the entire agreement among theparties and may not be amended or modified except in writing signed by allparties as required by the Agreement, (c) shall be governed and construedaccording to the laws of the State of Texas, and (d) may be executed in anynumber of counterparts, each of which shall be valid as an original and all ofwhich shall be on and the same agreement. A telecopy or other electronic transmission of any executed counterpartshall be deemed valid as an original.

 

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THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENTBETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO ORAL AGREEMENTS BETWEEN THEPARTIES.

 

IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be executed by their duly authorized officers in severalcounterparts effective as of the date specified in the introductory paragraphhereof.

 
|   | LOAN PARTIES:                                                                                                                                                                                                                                |   |
|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
|   |                                                                                                                                                                                                                                         |
|   | PENTACON, INC.                                                                                                                                                                                                                               |
|   |                                                                                                                                                                                                                                         |
|   | By:                                                                                                                                                                                                                                          |   |
|   | Name:                                                                                                                                                                                                                                        |   |
|   | Title:                                                                                                                                                                                                                                       |   |
|   |                                                                                                                                                                                                                                         |
|   | PENTACON AEROSPACE GROUP, INC., a Nevada corporation  and successor by merger to Texas International Aviation, Inc. West Coast Aero  Products Holding Corp., Pollard Acquisition Corp., ASI Aerospace Group, Inc.  and Alatec Products, Inc. |
|   | ALATEC CABLE & HARNESS                                                                                                                                                                                                                   |
|   | ASSEMBLY DIVISION, INC.                                                                                                                                                                                                                      |
|   | ALATEC FASTENER AND COMPONENT GROUP, INC.                                                                                                                                                                                                    |
|   | ALATEC RACE, INC.                                                                                                                                                                                                                            |
|   | TRACE ALATEC SUPPLY COMPANY, INC.                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                                         |
|   | By:                                                                                                                                                                                                                                          |   |
|   | Name:                                                                                                                                                                                                                                        |   |
|   | Title:                                                                                                                                                                                                                                       |   |
|   |                                                                                                                                                                                                                                         |
|   | PENTACON INDUSTRIAL GROUP, INC., a Nevada  corporation and successor by merger to AXS Solutions, Inc., Maumee  Industries, Inc. and Sales Systems Limited                                                                                    |
|   |                                                                                                                                                                                                                                         |
|   | By:                                                                                                                                                                                                                                          |   |
|   | Name:                                                                                                                                                                                                                                        |   |
|   | Title:                                                                                                                                                                                                                                       |   |
|        |                                                                                                                                                                                                                                              |        |  |  |

 

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|   | PENTACON USA, L.P., a Texas limited partnership and  successor by merger to Pace Products, Inc. and Capitol Bolt & Supply,  Inc. |
|--------|--------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | JIT Holdings, Inc., a Texas corporation |
|   | Its:                                                                                                                                 | General Partner |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  |   |
|   | Name:                                                                                                                                |   |
|   | Title:                                                                                                                               |   |
|   |                                                                                                                                 |
|   | THE AGENT:                                                                                                                           |   |
|   |                                                                                                                                 |
|   | BANK OF AMERICA, NATIONAL ASSOCIATION                                                                                                |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  |   |
|   | Name:                                                                                                                                |   |
|   | Title:                                                                                                                               |   |
|   |                                                                                                                                 |
|   | THE LENDERS:                                                                                                                         |   |
|   |                                                                                                                                 |
|   | BANK OF AMERICA, NATIONAL ASSOCIATION                                                                                                |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  |   |
|   | Name:                                                                                                                                |   |
|   | Title:                                                                                                                               |   |
|   |                                                                                                                                 |
|   | FLEET CAPITAL CORPORATION                                                                                                            |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  |   |
|   | Name:                                                                                                                                |   |
|   | Title:                                                                                                                               |   |
|   |                                                                                                                                 |
|   | PNC BANK, NATIONAL ASSOCIATION                                                                                                       |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  |   |
|   | Name:                                                                                                                                |   |
|   | Title:                                                                                                                               |   |
|   |                                                                                                                                 |
|   | UNION BANK OF CALIFORNIA, N.A.                                                                                                       |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  |   |
|   | Name:                                                                                                                                |   |
|   | Title:                                                                                                                               |   |
|        |                                                                                                                                      |  |  |  |  |  |  |

 

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