WAIVER #6 TO THIRD RESTATED AND AMENDED LOAN AND SECURITY
AGREEMENT
THIS WAIVER #6 TO THIRD RESTATED AND AMENDED LOAN AND SECURITY
AGREEMENT (this "Agreement") is made as of
November 14, 2005 by and between GMAC
COMMERCIAL FINANCE LLC, as successor by
merger to GMAC Commercial Credit LLC,
which was the successor in interest to BNY
Financial Corporation ("GMAC CF"), as
Agent and Lender, and PNC BANK, NATIONAL
ASSOCIATION ("PNC", and together with
GMAC CF, "Lenders"), as Lender and
Co-Agent, JACO ELECTRONICS, INC. ("Jaco"),
NEXUS CUSTOM ELECTRONICS, INC. ("Nexus")
and INTERFACE ELECTRONICS, INC.
("Interface", and together with Jaco and
Nexus, the "Borrowers").
W I T N E S S E T H :
WHEREAS, Borrowers, GMAC CF, PNC and Jaco de Mexico, Inc. entered
into
that certain Third Restated and Amended
Loan and Security Agreement, dated
December 22, 2003 (the "Third Restated
Agreement"), as amended by (i) Amendment
#1 to Third Restated and Amended Loan and
Security Agreement, dated September
20, 2004, (ii) Amendment #2 to Third
Restated and Amended Loan and Security
Agreement, dated November 23, 2004, (iii)
Amendment #3 to Third Restated and
Amended Loan and Security Agreement, dated
February 11, 2005, (iv) Waiver and
Amendment #4 to Third Restated and Amended
Loan and Security Agreement, dated as
of May 10, 2005, and (v) Waiver and
Amendment #5 to Third Restated and Amended
Loan and Security Agreement, dated as of
September 28, 2005 (as heretofore
amended and as hereafter restated,
supplemented, extended, renewed, amended and
otherwise modified from time to time, the
"Loan Agreement"), and into various
instruments, agreements and other documents
executed and/or delivered in
connection therewith (all of the foregoing,
together with the Loan Agreement, as
the same now exist or may hereafter be
amended, restated, renewed, extended,
substituted, modified or supplemented from
time to time, collectively, the "Loan
Documents"); and
WHEREAS, Events of Default have occurred under the Loan Agreement
as
the result of the failure by Borrowers to
maintain, for the four weeks ended
October 28, 2005 and November 4,
respectively, the minimum sales of inventory
required by Section 6.9(c) of the Loan
Agreement (such Events of Default,
collectively, the "Prior Sales Defaults");
and
WHEREAS, Borrowers have advised Lenders that Borrowers may
violate
Section 6.9(c) of the Loan Agreement in
respect of the minimum sales
requirements applicable under said Section
6.9(c) to the four weeks ended
November 11, 2005, November 18, 2005,
November 25, 2005 and December 2, 2005,
respectively (the Events of Default, if
any, as may arise from one or more
violations of Section 6.9(c) for the four
weeks ended November 11, November 18,
November 25 and/or December 2, 2005,
collectively, "Future Sales Defaults"); and
WHEREAS, Borrowers have requested that Lenders agree to waive the
Prior
Sales Defaults and the Future Sales
Defaults, if any, and Lenders have agreed to
accommodate
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Borrowers' request subject to the terms and
conditions set forth
herein, all as more particularly set forth
below.
NOW THEREFORE, in consideration of the foregoing, and for good
and
other valuable consideration, the receipt
and sufficiency of which is hereby
acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used in
this Agreement and not otherwise
defined shall have the meanings ascribed to
such terms, respectively, in the
Loan Agreement.
2. Borrowers' Acknowledgement and
Reaffirmation.
a. Each Borrower hereby acknowledges,
confirms and agrees that as of the date of
such Borrowers' execution hereof, none of
the Obligations are subject to offset,
defense or counterclaim of any kind, nature
or description whatsoever.
b. Each Borrower hereby ratifies and
confirms the Loan Agreement and each of the
other Loan Documents as being legal, valid
and binding joint and several
obligations of Borrowers, enforceable
against Borrowers in accordance with their
respective terms. Each Borrower hereby
ratifies and confirms such Borrower's
grant to Agent, for the ratable benefit of
Agent, Lenders and each Issuer, of
the first priority perfected liens upon,
and security interests in, the
properties and assets of such Borrower
heretofore mortgaged, pledged, granted or
assigned to Agent under the Loan Agreement
and the other Loan Documents, and
acknowledges and confirms that such first
priority perfected liens and security
interests secure, and shall continue to
secure, the Obligations, subject only to
such prior security interests as are
expressly perm
