THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.2
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is entered into as of April 29, 2015 by and among the lenders identified on the signature pages hereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and collectively as “Lenders”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), POWER SOLUTIONS INTERNATIONAL, INC., a Delaware corporation (“Parent”), and PROFESSIONAL POWER PRODUCTS, INC., an Illinois corporation (“PPPI”; Parent and PPPI, are referred to hereinafter each individually as a “Borrower”, and individually and collectively, jointly and severally, as the “Borrowers”).
WHEREAS, the Borrowers, Agent, and Lenders are parties to that certain Amended and Restated Credit Agreement dated as of April 1, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, Borrowers, Agent and Lenders have agreed to modify the Credit Agreement as provided herein, in each case subject to the terms and provisions hereof;
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 5 below and in reliance upon the representations and warranties of the Borrowers set forth in Section 6 below, the Credit Agreement is amended as follows:
(a) Section 6.10 to the Credit Agreement is hereby amended by deleting the “and” at the end of clause “c” thereof, deleting the “.” at the end of clause “d” thereof, inserting the phrase “, and” at the end of clause (d) thereof and adding a new clause (e) at the end thereof as follows:
(e) transactions among Loan Parties.
(b) The defined term “Change of Control” set forth in Schedule 1.1 to the Credit Agreement is hereby amended and restated in its entirety as follows:
“Change of Control” means that:
(a) Permitted Holders fail to own and control, directly or indirectly, 20%, or more, of the Equity Interests of Parent entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of Parent,
(b) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 20%, or more, of the Equity Interests of Parent entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of Parent,
(c) a majority of the members of the Board of Directors of Parent do not constitute Continuing Directors,
(d) except for Permitted Dispositions, Parent fails to own and control, directly or indirectly, 100% of the Equity Interests of each other Loan Party, or
(e) any “Change of Control” as defined in the Notes Indenture Agreement.
(c) The defined term “Maturity Date” set forth in Schedule 1.1 to the Credit Agreement is hereby amended and restated in its entirety as follows:
“Maturity Date” means June 28, 2018; provided, that, so long as the Notes Debt is outstanding, the Maturity Date shall be (i) if the Parent has not delivered to the Trustee (as defined in the Notes Indenture Agreement) an executed Officers’ Certificate in the form attached as Exhibit E to the Notes Indenture Agreement on or within five days prior to March 15, 2017 that eliminates Loan Parties’ obligation to make a Special Mandatory Offer to Purchase (as defined in the Notes Indenture Agreement), 75 days prior the earliest date that a Special Mandatory Purchase Date may occur, or (ii) if the Company has delivered to the Trustee an executed Officers’ Certificate referenced above that eliminates Loan Parties’ obligation to make a Special Mandatory Offer to Purchase (as defined in the Notes Indenture Agreement), 90 days prior to the final maturity of the Notes Debt.
(d) The defined term “Permitted Indebtedness” set forth in Schedule 1.1 to the Credit Agreement is hereby amended by deleting the “.” at the end of clause “u” thereof, inserting the phrase “, and” at the end of clause (u) thereof and adding a new clause (v) at the end thereof as follows:
(v) the Notes Debt in an aggregate principal amount not to exceed $55,000,000.
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(e) Schedule 1.1 to the Credit Agreement is hereby amended by adding the following definitions in their respective alphabetical order:
“Notes Debt” means the Indebtedness evidenced by the Senior Notes and related Guarantees (as defined in the Notes Indenture Agreement as of April 29, 2015) and any Refinancing Indebtedness of such Indebtedness.
“Notes Indenture Agreement” means the Indenture among Parent and the guarantors party thereto, and The Bank of New York Mellon, as trustee, as amended from time to time as in effect on April 29, 2015.
“Senior Notes” means the “Securities” as defined in the Notes Indenture Agreement.
“Special Mandatory Purchase Date” means the “Special Mandatory Purchase Date” as defined in the Notes Indenture Agreement or any corresponding term in any Refinancing Indebtedness of the Notes Debt
3. Continuing Effect. Except as expressly set forth in Section 2 of this Amendment, nothing in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan Document, or a waiver of any other terms or provisions thereof, and the Credit Agreement and the other Loan Documents shall remain unchanged and shall continue in full force and effect, in each case as amended hereby.
4. Reaffirmation and Confirmation. Each Borrower hereby ratifies, affirms, acknowledges and agrees that the Credit Agreement and the other Loan Documents represent the valid, enforceable and collectible obligations of such Borrower, and further acknowledges that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Credit Agreement or any other Loan Document. Each Borrower hereby agrees that this Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. The Liens and rights securing payment of the Obligations are hereby ratified and confirmed by the Borrowers in all respects.
5. Conditions to Effectiveness of Amendment. This Amendment shall become effective as of the date first written above upon the satisfaction of the following conditions precedent:
(a) Each party hereto shall have executed and delivered this Amendment to Agent;
(b) Borrowers shall have prepaid the Term Loan in full;
(c) Agent shall have received an executed copy of the Notes Indenture Agreement, in form and substance reasonably satisfactory to Agent;
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(d) All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to Agent and its legal counsel; and
(e) No Default or Event of Default shall have occurred and be continuing.
6. Representations and Warranties. In order to induce Agent and Lenders to enter into this Amendment, each Borrower hereby represents and warrants to Agent and Lenders, after giving effect to this Amendment:
(a) All representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date);
(b) No Default or Event of Default has occurred and is continuing; and
(c) This Amendment and the Credit Agreement, as amended hereby, constitute legal, valid and binding obligations of such Borrower and are enforceable against such Borrower in accordance with their respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.
7. Miscellaneous.
(a) Expenses. Borrowers agree to pay on demand all Lender Group Expenses of Agent and Lenders in connection with the preparation, negotiation, execution, delivery and administration of this Amendment in accordance with the terms of the Credit Agreement.
(b) Governing Law. This Amendment shall be a contract made under and governed by, and construed in accordance with the internal laws of the State of Illinois.
(c) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Delivery of an executed signature page of this Amendment by facsimile transmission or electronic photocopy (i.e. “pdf”) shall be effective as delivery of a manually executed counterpart hereof.
8. Release. In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of
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which is hereby acknowledged, each Loan Party, on behalf of itself and its respective successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and Lenders, and their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known as of the date of this Amendment, both at law and in equity, which each Loan Party, or any of its respective successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, in each case for or on account of, or in relation to, or in any way in connection with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.
| BORROWERS: | POWER SOLUTIONS INTERNATIONAL, INC. | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Chief Financial Officer | |||||
| PROFESSIONAL POWER PRODUCTS, INC., | ||||||
| an Illinois corporation | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Chief Financial Officer | |||||
Signature Page to Third Amendment to Credit Agreement
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Agent, as Lead Arranger, as Book Runner, and as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Vice President | |
Signature Page to Third Amendment to Credit Agreement
CONSENT AND REAFFIRMATION
Each of the undersigned hereby (i) acknowledges receipt of a copy of the foregoing Third Amendment to Credit Agreement (the “Amendment”); (ii) consents to each Borrower’s execution and delivery of the Amendment; (iii) agrees to be bound by the Amendment; and (iv) affirms that nothing contained therein shall modify in any respect whatsoever any Loan Documents (other than as specifically provided in the Amendment) to which the undersigned is a party and reaffirms that the Loan Documents to which it is a party shall continue to remain in full force and effect. Although each of the undersigned has been informed of the matters set forth herein and has acknowledged and agreed to same, the undersigned understands that Agent and Lenders have no obligation to inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of the date of the Amendment.
| THE W GROUP, INC. a Delaware corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| POWER SOLUTIONS, INC., an Illinois corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| POWER GREAT LAKES, INC., an Illinois corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| AUTO MANUFACTURING, INC., an Illinois corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
Consent and Reaffirmation
| TORQUE POWER SOURCE PARTS, INC. an Illinois corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| POWER PROPERTIES, L.L.C., an Illinois limited liability company | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| POWER PRODUCTION, INC., an Illinois corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| POWER GLOBAL SOLUTIONS, INC., an Illinois corporation | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| PSI INTERNATIONAL, LLC, an Illinois limited liability company | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
| XISYNC LLC, an Illinois limited liability company | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Chief Financial Officer | |
Consent and Reaffirmation
