AGREEMENT AND RELATED PROMISSORY NOTES

 

                                                                    EXHIBIT 10.4

        WAIVER AND FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN
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                    AGREEMENT AND RELATED PROMISSORY NOTES
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        THIS WAIVER AND FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN
AGREEMENT AND RELATED PROMISSORY NOTES (this "Amendment") is executed as of
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November 14, 2001, by and between AMX CORPORATION, a Texas corporation, formerly
known as PANJA INC. ("Borrower") and BANK ONE, NA, successor by merger to BANK
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ONE, TEXAS, N.A., a national banking association ("Lender").
                                                   ------

                             W I T N E S S E T H:

        WHEREAS, Borrower and Lender entered into that certain Fourth Amended
and Restated Loan Agreement, dated September 1, 2000, pursuant to which Lender
agreed to make available to Borrower the Borrowing Base Line of Credit (as
therein defined) and the Advance/Term Facility (as therein defined)(as
heretofore or hereafter amended, the "Loan Agreement")(each capitalized term
                                      --------------
used herein, but not otherwise defined shall have the same meaning given to it
in the Loan Agreement); and

        WHEREAS, pursuant to the Loan Agreement, Borrower, Lender and Banc One
International Corporation executed that certain Exim Agreement (as defined in
the Loan Agreement) dated the date of the Loan Agreement, pursuant to which
Lender agreed to make available to Borrower a working capital loan for export
transactions in the amount of $4,000,000.00 (the "Exim Line of Credit") to be
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guaranteed by Exim Bank and included as a portion of the Borrowing Base Line of
Credit; and

        WHEREAS, in connection with the Loan Agreement, Borrower executed that
certain Renewal Promissory Note (the "Borrowing Base Note") dated the date of
                                      -------------------
the Loan Agreement in the stated principal amount of $10,000,000; and

        WHEREAS, in connection with the Exim Agreement, Borrower executed that
certain Promissory Note (the "Exim Note") dated the date of the Exim Agreement
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in the stated principal amount of $4,000,000; and

        WHEREAS, Borrower and Lender entered into that certain Amendment to
Fourth Amended and Restated Loan Agreement (the "First Amendment") dated as of
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January 5, 2001, pursuant to which Lender agreed to make available to Borrower
the 2001 Line of Credit (as therein defined); and

        WHEREAS, in connection with the First Amendment, Borrower executed that
certain Promissory Note (the "Term Note") dated the date of the First Amendment
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in the stated principal amount of $2,000,000 (the Borrowing Base Note, the Exim
Note and the Term Note shall be collectively referred to herein as the "Notes");
and

        WHEREAS, Borrower and Lender entered into that certain Second Amendment
to Fourth Amended and Restated Loan Agreement (the "Second Amendment") dated as
                                                    ----------------
of March 31, 2001, pursuant to which Lender agreed to modify certain covenants
contained in the Loan Agreement; and

        WHEREAS Borrower and Lender entered into that certain Third Amendment to
Fourth Amended and Restated Loan Agreement (the "Third Amendment") dated as of
                                                 ---------------
September 14, 2001, pursuant to which Lender consented to an extension of the
Maturity Dates of the Borrowing Base Note and the Exim Note to September 14,
2001; and

        WHEREAS Borrower and Lender entered into that certain Fourth Amendment
to Fourth Amended and Restated Loan Agreement (the "Fourth Amendment") dated as
                                                    ----------------
of September 14, 2001, pursuant to which (i) the Borrowing Base was modified,
and (ii) certain financial covenants were modified; and

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        WHEREAS, Borrower has requested that, among other things, Lender modify
certain covenants contained in the Loan Agreement and waive Borrower's
noncompliance with certain covenants contained in the Loan Agreement; and

        WHEREAS, subject to the terms and conditions herein contained, Lender is
willing to agree to such requests.

        NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower and
Lender hereby covenant and agree as follows:

                             ARTICLE I: AMENDMENTS
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        Section 1.1. Modifications to Loan Agreement.
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        (a) Modification of Definition under Borrowing Base Line of Credit.

                As of the date of this Amendment, the following definition in
        the Loan Agreement shall be amended as follows:

                   The term "Borrowing Base Amount" shall mean an amount equal
        to the lesser of (a) an amount equal to the Domestic Borrowing Base plus
                                                                            ----
        the Credit Accommodation Amount or (b) an amount equal to $14,000,000.00
        until December 30, 2001, reducing to $12,500,000 from December 31, 2001,
        until March 30, 2002, and reducing to $11,500,000 thereafter (the
        "Borrowing Base Line of Credit") less the Letter of Credit Liabilities.
         -----------------------------

        (b) Modification of Financial Covenants.

                 As of the date of this Amendment, Section 9(b) of the Loan
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        Agreement is hereby amended and restated as follows:

                 (b)  Tangible Net Worth. From and after the date of the Fourth
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                 Amendment to Fourth Amended and Restated Loan Agreement,
                 Consolidated Borrower will maintain, at all times, its Tangible
                 Net Worth at not less than $12,000,000, which amount shall be
                 tested at the end of each calendar quarter.

        (c) Modification of Reporting Requirements. Sections 10(a) of the
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        Loan Agreement are hereby amended and restated as follows:

                 (a) Interim Statements. As soon as available, and in any event
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                 within thirty (30) days after the end of each calendar month, a
                 consolidated and consolidating balance sheet and income
                 statement of Consolidated Borrower as of the end of the
                 calendar month then ended, internally prepared and certified as
                 being true and correct by the President or Chief Financial
                 Officer of Borrower and, as soon as available, and in any event
                 within forty-five (45) days after the end of each quarter of
                 each fiscal year of Consolidated Borrower, the 10-Q Report.,

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        Section 1.2. Modification of Amended and Restated Promissory Note. The
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following definitions contained in that certain Amended and Restated Borrowing
Base Note are hereby amended as follows:

                "Adjusted LIBOR Rate" shall mean with respect to each Interest
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                Period, on any day thereof an amount equal to the sum of (i)
                3.25%, plus, (ii) the quotient of (a) the LIBOR Rate with
                respect to such Interest Period (the "Index"), divided by (b)
                the remainder of 1.0 less the Reserve Requirement in effect on
                such day. Each determination by Bank of the Adjusted LIBOR Rate
                shall, in the absence of manifest error, be conclusive and
                binding.

                "Prime Rate" shall mean the sum of (a) the rate established from
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                time to time by Bank as its prime rate of interest (which may
                not be the lowest, best or most favorable rate of interest which
                Bank may charge on loans to its customers), plus (b) 1% per
                annum.

        Section 1.3. Waiver. Subject to the terms and conditions of this
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Amendment, Lender hereby waives compliance by Borrower with the terms of
Sections 9(a) through 9 (c) of the Loan Agreement for the fiscal quarter ended
on September 30, 2001.

                       ARTICLE II: CONDITIONS PRECEDENT
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        Section 2.1. Closing. The closing (the "Closing") of the transactions
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contemplated by this Amendment shall occur on and as of the date that all
conditions hereto contained in Section 2.2 of this Amendment have been satisfied
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(the "Amendment Closing Date").
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        Section 2.2. Conditions to the Closing. As conditions precedent to the
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Closing, Borrower and Lender shall have executed and delivered this Amendment.

                          ARTICLE III: MISCELLANEOUS
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        Section 3.1. Continuing Effect. Except as modified and amended hereby,
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the Loan Agreement and other Loan Documents are and shall remain in full force
and effect in accordance with their terms.

        Section 3.2. Payment of Expenses. Borrower agrees to pay to Lender the
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reasonable attorneys' fees and expenses of Lender's counsel and other expenses
incurred by Lender in connection with this Amendment.

        Section 3.3. Binding Loan Agreement. This Amendment shall be binding
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upon, and shall inure to the benefit of, the parties' respective
representatives, successors and assigns.

        Section 3.4. Ratification. Except as otherwise expressly modified by
                     ------------
this Amendment, all terms and provisions of the Loan Agreement, the Amended
Notes and the other Loan Documents, shall remain unchanged and hereby are
ratified and confirmed and shall be and shall remain in full force and effect,
enforceable in accordance with their terms.

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        Section 3.5. No Defenses. Borrower by its execution of this Amendment,
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hereby declares that it has no set-offs, counterclaims, defenses or other causes
of action against Lender arising out of the Loans, the modification of the
Loans, any documents mentioned herein or otherwise; and, to the extent any such
setoffs, counterclaims, defenses or other causes of action may exist, whether
known or unknown, such items are hereby waived by Borrower.

        Section 3.6. Further Assurances. The parties hereto shall execute such
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other documents as may be necessary or as may be required, in the opinion of
counsel to Lender , to effect the transactions contemplated hereby and to extend
the liens and/or security interests of all other collateral instruments, as
modified by this Amendment, including, without limitation, any modifications to,
or re-filing of any financing statements previously held by Lender related to
the Loans to reflect the change in Borrower's name. Borrower also agrees to
provide to Lender such other documents and instruments as Lender reasonably may
request in connection with the modification of the Loans effected hereby.

        Section 3.7. Usury Savings Clause. Notwithstanding anything to the
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contrary in this Amendment, the Amended Notes or any other Loan Document, or in
any other agreement entered into in connection with the Amended Notes or
securing the indebtedness evidenced by the Amended Notes, whether now existing
or hereafter arising and whether written or oral, it is agreed that the
aggregate of all interest and other charges constituting interest, or
adjudicated as constituting interest, and contracted for, chargeable or
receivable under the Amended Notes or otherwise in connection with the Amended
Notes shall under no circumstances exceed the maximum rate of interest permitted
by applicable law. In the event the maturity of the Amended Notes is accelerated
by reason of an election by the holder thereof resulting from a default
thereunder or under any other document executed as security therefore or in
connection therewith, or by voluntary prepayment by the maker, or otherwise,
then earned interest may never include more than the maximum rate of interest
permitted by applicable law. If from any circumstance any holder of any of the
Amended Notes shall ever receive interest or any other charges constituting
interest, or adjudicated as constituting interest, the amount, if any, which
would exceed the maximum rate of interest permitted by applicable law shall be
applied to the reduction of the principal amount owing on such Amended Notes or
on account of any other principal indebtedness of the maker to the holders of
such Amended Notes, and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal thereof and such other
indebtedness, the amount of such excessive interest that exceeds the unpaid
balance of principal thereof and such other indebtedness shall be refunded to
the maker. All sums paid or agreed to be paid to the holder of the Amended Notes
for the use, forbearance or detention of the indebtedness of the maker to the
holder of such Amended Notes shall be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full for the
purpose of determining the actual rate on such indebtedness is uniform
throughout the term thereof.

        The terms "maximum amount" or "maximum rate" as used in this Amendment
or the Amended Notes, or in any other agreement entered into in connection with
the Amended Notes or securing the indebtedness evidenced by the Amended Notes,
whether now existing or hereafter arising and whether written or oral, include,
as to Chapter 303 of the Texas Finance Code (and as same may be incorporated by
reference in other statutes of the State of Texas), but otherwise without
limitation, that rate based upon the "weekly ceiling"; provided, however, that
this designation shall not preclude the rate of interest contracted for, charged
or received in connection with the Loans from being governed by, or construed in
accordance with, any other state or federal law, including but not limited to,
Public Law 96-221.

        Section 3.8. Non-Waiver of Events of Default. Except as specifically
                     -------------------------------
provided herein, neither this Amendment nor any other document executed in
connection herewith constitutes or shall be deemed (a) a waiver of, or consent
by Lender to, any default or event of default which may exist or hereafter occur
under any of the Loan Documents, (b) a waiver by Lender of any of Borrower's
obligations under the Loan Documents, or (c) a waiver by Lender of any rights,
offsets, claims, or other causes of action that Lender may have against
Borrower.

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        Section 3.9. Enforceability. In the event the enforceability or validity
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of any portion of this Amendment, the Loan Agreement, the Amended Notes, or any
of the other Loan Documents is challenged or questioned, such provision shall be
construed in accordance with, and shall be governed by, whichever applicable
federal or Texas law would uphold or would enforce such challenged or questioned
provision.

        Section 3.10. Counterparts. This Amendment may be executed in several
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counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument, it being understood and agreed that the signature pages may be
detached from one or more of such counterparts and combined with the signature
pages from any other counterpart in order that one or more fully executed
originals may be assembled.

        Section 3.11. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.

        Section 3.12. Entire Loan Agreement. This Amendment, together with the
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other Loan Documents, contain the entire agreements between the parties relating
to the subject matter hereof and thereof. This Amendment and the other Loan
Documents may be amended, revised, waived, discharged, released or terminated
only by a written instrument or instruments, executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.

        THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
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AGREEMENT BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER THEREIN CONTAINED
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AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
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ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
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THE PARTIES.
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        IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first written above.

                                LENDER:
                                ------

                                BANK ONE, NA, successor by merger to BANK ONE,
                                TEXAS, N.A., a national banking association

                                By:   /s/ B. Stanton Luse, Jr.
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                                Name:     B. Stanton Luse, Jr.
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                                Title:    Senior Vice President
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                                BORROWER:
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                                AMX CORPORATION, a Texas corporation, formerly
                                known as PANJA INC.

                                By:   /s/ Jean M. Nelson
                                   -----------------------------------------
                                Name:     Jean M. Nelson
                                     ---------------------------------------
                                Title:    Vice President and Chief Financial
                                       -------------------------------------
                                          Officer
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Basic Info X:

Name: AGREEMENT AND RELATED PROMISSORY NOTES
Type: Promissory Note
Date: Nov. 14, 2001
Company: AMX CORP /TX/
State: Texas

Other info: