EXHIBIT
10.1
FIRST
AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made
and entered into as of the 30th day of January, 2009, by and among
(a) LABARGE, INC., a Delaware corporation (the
“Company”), LABARGE ELECTRONICS, INC., a Missouri
corporation (“LaBarge Electronics”) and LABARGE
ACQUISITION COMPANY, INC., a Missouri corporation (“LaBarge
Acquisition”) (individually, a “Borrower” and
collectively, the “Borrowers”), (b) U.S. BANK NATIONAL
ASSOCIATION and WELLS FARGO BANK, NATIONAL ASSOCIATION
(individually, a “Lender” and collectively, the
"Lenders") and (c) U.S. BANK NATIONAL ASSOCIATION, as agent for the
Lenders (in such capacity, the “Agent”).
WITNESSETH:
WHEREAS, the Borrowers, the Lenders and the Agent are parties to
that certain Loan Agreement dated as of December 22, 2008 (the
"Loan Agreement"; all capitalized terms used and not otherwise
defined in this Amendment shall have the respective meanings
ascribed to them in the Loan Agreement as amended by this
Amendment); and
WHEREAS, the Borrowers, the Lenders and the Agent desire to amend
the Loan Agreement in the manner hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrowers, the Lenders and the Agent
hereby agree as follows:
1. The definition
of “LIBOR Base Rate” set forth in Section 1.01 of the
Loan Agreement is hereby amended effective as of December 22, 2008,
to read as follows:
“ LIBOR Base Rate shall mean, with respect to the
applicable Interest Period, (a) the LIBOR Index Rate for such
Interest Period, if such rate is available or (b) if the LIBOR
Index Rate is not available, the average of the respective rates
per annum of interest at which deposits in U.S. Dollars are offered
to U.S. Bank in the London interbank market by two (2) Eurodollar
dealers of recognized standing, selected by U.S. Bank in its sole
discretion, at or about 11:00 a.m. (London time) on the date two
(2) Eurodollar Business Days before the first day of such Interest
Period, for delivery on the first day of the applicable Interest
Period for a number of days comparable to the number of days in
such Interest Period and in an amount approximately equal to the
principal amount of the LIBOR Loan to which such Interest Period is
to apply.”
2. The definition
of “LIBOR Index Rate” set forth in Section 1.01 of the
Loan Agreement is hereby amended effective as of December 22, 2008,
to read as follows:
“ LIBOR Index Rate shall mean, with respect to the
applicable Interest Period, a rate per annum equal to the British
Bankers’ Association interest settlement rates for U.S.
Dollar deposits for such Interest Period as of 11:00 a.m. (London
time) on the day two (2) Eurodollar Business Days before the first
day of such Interest Period as published on Reuters Screen LIBOR01
Page, or if Reuters Screen LIBOR01 Page is not available, as
published by Bloomberg Financial Services, Dow Jones Market
Services, Telerate or any similar service selected by the
Agent.”
3. The definition
of “Consolidated EBITDA” set forth in Section 1.01 of
the Loan Agreement is hereby amended effective as of December 22,
2008, to read as follows:
“ Consolidated EBITDA shall mean, for the period
in question, the sum of (a) Consolidated Net Income during such
period, plus (b) to the extent deducted in determining such
Consolidated Net Income, the sum of (i) Consolidated Interest
Expense during such period, plus (ii) all provisions for any
Federal, state, local and/or foreign income taxes made by the
Company and its Subsidiaries during such period (whether paid,
accrued or deferred), plus (iii) all depreciation and
amortization expenses of the Company and its Subsidiaries during
such period, plus (iv) any extraordinary losses during such
period (including, without limitation, and whether or not such
losses constitutes extraordinary losses, losses in an aggregate
amount not to exceed $7,600,000.00 incurred during the fiscal year
of the Company ending June 28, 2009, with respect to the write-down
of certain Accounts owed to the Company by, and certain inventory
manufactured or acquired by the Company specifically for, Eclipse
Aviation Corporation), plus (v) any losses from the sale or
other disposition of Property other than in the ordinary course of
business during such period, plus (vi) any non-cash charge
required to be made by the Company during such period for
impairment of goodwill under U.S. Financial
Accounting Standard Number 142 entitled “Goodwill and Other
Intangible Assets”, minus (c) to the extent added in
determining such Consolidated Net Income, the sum of (i) any
extraordinary gains during such period plus (ii) any gains
from the sale or other disposition of Property other than in the
ordinary course of business during such period, plus (d)with
respect to the four (4) consecutive fiscal quarter period of the
Company ended December 28, 2008, $5,810,499.00, plus (e)
with respect to the four (4) consecutive fiscal quarter period of
the Company ending March 29, 2009, $4,237,033.00, plus (f)
with respect to the four (4) consecutive fiscal quarter period of
the Company ending June 28, 2009, $2,484,676.00 plus (g)
with respect to the four (4) consecutive fiscal quarter period of
the Company ending September 27, 2009, $841,716.00, all determined
on a consolidated basis and in accordance with
GAAP.”
4. Section 5.01(q)
of the Loan Agreement is hereby amended effective as of December
22, 2008, to read as follows:
“(q) Interest Rate
Protection . LaBarge Acquisition will, on or before January 31,
2009, purchase interest rate protection in the form of either an
interest rate cap, an interest rate collar or an interest rate swap
covering at least $22,500,000.00 of the outstanding principal
amount of the LaBarge Acquisition Term Loan for a period of not
less than three (3) years, which interest rate cap, interest rate
collar or interest rate swap must be in form and substance
satisfactory to the Agent and the Required
Lenders.”
5. The Borrowers
hereby jointly and severally agree to reimburse the Agent upon
demand for all out‑of‑pocket costs and expenses,
including, without limitation, reasonable attorneys' fees and
expenses, incurred by the Agent in the preparation, negotiation
and/or execution of this Amendment and any and all other
agreements, documents, instruments and/or certificates relating to
the amendment of the Borrowers' existing credit facilities from the
Lenders. All of the obligations of the Borrowers under this
paragraph shall survive the payment of the Borrower's
Obligations owed by any one or more of the Borrowers and the
termination of the Loan Agreement.
6. All references
in the Loan Agreement to "this Agreement" and any other references
of similar import shall henceforth mean the Loan Agreement as
amended by this Amendment and as the same may from time to time be
further amended, modified, extended, renewed or restated. All
references in the other Transaction Documents to the Loan Agreement
and any other references of similar import shall henceforth mean
the Loan Agreement as amended by this Amendment and as the same may
from time to time be further amended, modified, extended, renewed
or restated. Except to the extent specifically amended by this
Amendment, all of the terms, provisions, conditions, covenants,
representations and warranties contained in the Loan Agreement
shall be and remain in full force and effect and the same are
hereby ratified and confirmed.
7. This Amendment
shall be binding upon and inure to the benefit of the Borrowers,
the Lenders and the Agent and their respective successors and
assigns, except that no Borrower may assign, transfer or delegate
any of its rights or obligations under the Loan Agreement as
amended by this Amendment.
8. Each Borrower
hereby represents and warrants to the Agent and each Lender
that:
(a) the execution,
delivery and performance by such Borrower of this Amendment are
within the corporate powers of such Borrower, have been duly
authorized by all necessary corporate action on the part of such
Borrower and require no consent of, action by or in respect of, or
filing, recording or registration with, any governmental or
regulatory body, instrumentality, authority, agency or official or
any other Person;
(b) the execution,
delivery and performance by such Borrower of this Amendment do not
conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under or result in any
violation of, the terms of the certificate or articles of
incorporation or by‑laws of such Borrower, any applicable
law, rule, regulation, order, writ, judgment or decree o
