EXHIBIT 10.2
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
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THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT (this "Amendment") is entered into as of July 25, 2001,
among COORSTEK, INC., a Delaware corporation ("Borrower"), certain Lenders under
the Credit Agreement described below, BANK OF AMERICA, N.A., in its capacity as
Administrative Agent for the Lenders under the Credit Agreement ("Administrative
Agent"), and Guarantors under the Credit Agreement (hereinafter defined).
Reference is made to the First Amended and Restated Revolving Credit and
Term Loan Agreement, dated as of January 11, 2001 (as amended to date, the
"Credit Agreement"), among Borrower, Administrative Agent, and the Lenders party
thereto. Unless otherwise defined in this Amendment, capitalized terms used
herein shall have the meaning set forth in the Credit Agreement; all Section and
Schedule references herein are to Sections and Schedules in the Credit
Agreement; and all Paragraph references herein are to Paragraphs in this
Amendment.
RECITALS
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A. Borrower proposes to issue up to $100,000,000 of Subordinated Debt
(the " Subordinated Debt"), a portion of the proceeds of which will be used as
follows: (i) to pay fees, costs, and expenses associated with the issuance of
the Subordinated Debt and this Amendment and (ii) to permanently prepay the Term
Loan B Principal Debt.
B. Borrower has requested that a provision be added to the Credit
Agreement to permit the Revolver Commitment, at Borrower's request and upon
receipt of commitments from Lenders and other Eligible Assignees, to be
increased by up to an additional $50,000,000.
C. Borrower has requested certain amendments under the Credit
Agreement, and the Lenders party hereto are willing to grant and agree to such
amendments and waivers, but only upon the condition, among other things, that
Borrower, Guarantors, and Required Lenders shall have executed and delivered
this Amendment and shall have agreed to the terms and conditions of this
Amendment.
NOW, THEREFORE, in consideration of these premises and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree, as follows:
Paragraph 1 Amendments.
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1.1 Definitions.
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(a) The definition of "Applicable Margin" is amended to add an
additional pricing tier for a Leverage Ratio of greater than or equal to 3.50 to
1.0; accordingly, the pricing grid in clause (a) of the definition of
"Applicable Margin" is deleted in its entirety and the following is substituted
therefor:
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Applicable Margin
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Eurodollar Rate
Leverage Ratio Base Rate Borrowings Borrowings
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Less than 2.50:1.0 0% 1.500%
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Greater than or equal to
2.50:1.0,
but less than 3.00:1.0 0.250% 1.750%
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Greater than or equal to
3.00:1.0,
but less than 3.25:1.0 0.500% 2.000%
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Greater than or equal to
3.25:1.0,
but less than 3.50:1.0 0.750% 2.250%
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Greater than or equal to
3.50:1.0 1.000% 2.500%
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(b) In order to delete the reference to permitted sale-leaseback
arrangements, the definition of "Capital Expenditures" is amended by (i)
inserting the word "and" immediately after clause (a) thereof, (ii) deleting the
comma (,) immediately after clause (b) thereof and substituting a period (.)
therefor, and (iii) deleting clauses (c) and (d) in their entirety.
(c) The definition of "Lien" is amended by inserting the following proviso
at the end of such definition prior to the period (.):
"; provided that, any financing statement filed by the owner of
equipment leased to a Company and filed solely for the purpose of
putting third parties on notice of such owner's interest (as a lessor
under an operating lease) in such equipment will not be considered a
Lien, so long as such operating lease remains a true operating lease
under GAAP and under applicable Law."
(d) The definition of "Permitted Acquisition" is amended as follows by:
(i) deleting clause (a)(i) thereof in its entirety and substituting
the following therefor:
" (i) the Purchase Price of all Permitted Acquisitions
consummated in any calendar year may not exceed $80,000,000 in
the aggregate nor may the portion of the Purchase Price for all
Permitted Acquisitions consummated in any calendar year
attributable to goodwill exceed the lesser of 50% of the Purchase
Price or $40,000,000 in the aggregate; provided that, at any time
when the Leverage Ratio is greater than 3.50 to 1.0 (but not
greater than the applicable Leverage Ratio required by Section
9.30(a)), no Permitted Acquisition may be consummated if the
aggregate Purchase Price for all Acquisitions consummated in such
calendar year (including the proposed Acquisition) exceeds
$10,000,000 (any
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Acquisition consummated in accordance with this proviso
shall be referred to herein as a "Special Acquisition");";
(ii) deleting clause (a)(iii) thereof in its entirety and
substituting the following therefor:
" (iii) not less than 10 Business Days prior to the
closing of any Acquisition, Borrower shall have delivered
to Administrative Agent a Permitted Acquisition Compliance
Certificate (A) certifying compliance with the terms and
conditions of the Loan Documents, after giving effect to
the Acquisition and (B) including (1) pro forma income and
balance sheet projections for the Companies (after giving
effect to the Acquisition), and (2) five year cash flow
projections for the Acquisition demonstrating compliance
with the Companies' applicable financial covenants and debt
amortization schedules; provided that, for any Acquisition
(other than a Special Acquisition) with a Purchase Price of
less than $10,000,000, the items in clause (B) shall not be
required;"; and
(iii) deleting the word "and" after clause (a)(vi) thereof, and (iv)
adding the following as clauses (a)(viii) and (a)(ix):
" (viii) Except with respect to Special Acquisitions
made in accordance with clause (a)(i) hereof, the Leverage
Ratio (calculated on a pro forma basis after giving effect
to any Acquisition) must be less than or equal to the
lesser of (x) the applicable Leverage Ratio required by
Section 9.30(a) or (y) 3.50 to 1.00, as of the closing of
such Acquisition and for the five years immediately
following such Acquisition; and
(ix) With respect to Special Acquisitions made in
accordance with clause (a)(i) hereof, the Leverage Ratio
(calculated on a pro forma basis after giving effect to any
Acquisition) must be less than or equal to the applicable
Leverage Ratio required by Section 9.30(a), as of the
closing of such Acquisition and for the five years
immediately following such Acquisition."
(e) The definition of "Revolver Commitment" is amended to address the
potential increases of the commitment contemplated by Paragraph 1.2 hereof by
deleting such provision in its entirety and substituting the following is
therefor:
"Revolver Commitment means an amount (subject to increase, reduction,
or cancellation in accordance with this Agreement) equal to
$125,000,000."
(f) The following definitions of "First Amendment," "First Amendment
Date," "Special Acquisition," and "Subordinated Debt" shall be inserted in
alphabetical order in Section 1.1 to read, as follows:
"First Amendment means that certain First Amendment to First Amended
and Restated Revolving Credit and Term Loan Agreement dated as of July
25, 2001, among Borrower, Guarantors, Administrative Agent, and
Required Lenders."
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"First Amendment Date means the "Effective Date," as defined in the
First Amendment."
"Special Acquisition is defined in clause (a)(i) of the definition of
"Permitted Acquisition.""
"Subordinated Debt means (a) Debt of any Company which is subordinated
in right of payment to the Obligation and which is permitted under
Section 9.12(j), so long as (i) the maturity date of all Subordinated
Debt is no earlier than six months after the latest of the then-
existing Termination Dates, (ii) such Subordinated Debt is unsecured,
unguaranteed, and does not (in the absence of default and acceleration
to the extent permitted by the subordination terms thereof) require
any principal payments prior to the termination of the Total
Commitment, payment in full of the Principal Debt and of all interest,
fees, and other amounts of the Obligation, and the expiration of all
LCs (other than permitted refinancings or conversions made in
accordance with Section 9.6), and (iii) all terms and conditions of
such Subordinated Debt and the documents and agreements evidencing and
establishing such Subordinated Debt (including, without limitation,
the subordination provisions) are acceptable to Administrative Agent
(in its sole discretion), (b) refinancings of Subordinated Debt
permitted under Section 9.6, and (c) conversions of Subordinated Debt
into forms of equity permitted under Section 9.6."
1.2 A new Section 2.8 is added to permit optional increases in the
Revolver Commitment, as follows:
"2.8 Increases of Commitments.
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(a) Upon notice to Administrative Agent (which shall promptly
notify Revolver Lenders), Borrower may from time to time, request an
increase in the Revolver Commitment of up to $50,000,000, resulting in
an increased Revolver Commitment of up to $175,000,000; provided that
(i) any request for an increase in the Revolver Commitment shall be in
an amount not less than $10,000,000 and (ii) no more than two requests
for an increased Revolver Commitment may be made. At the time of
sending such notice, Borrower (in consultation with Administrative
Agent) shall specify the time period within which each Revolver Lender
is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to Revolver
Lenders). Each Revolver Lender shall notify Administrative Agent
within such time period whether or not it agrees to increase its
Committed Sum under the Revolver Facility, and, if so, whether by an
amount equal to, greater than, or less than its Commitment Percentage
of such requested increase. Any Revolver Lender not responding within
such time period shall be deemed to have declined to increase its
Committed Sum under the Revolver Facility. Administrative Agent shall
notify Borrower and each Revolver Lender of Revolver Lenders'
responses to each request made hereunder. To achieve the full amount
of a requested increase, the Borrower may also invite additional
Eligible Assignees to become Revolver Lenders. Any increase in the
Revolver Commitment must be effected by an amendment that is executed
in accordance with Section 13.11 by Borrower, Administrative Agent,
and the one or more Revolver Lenders who have agreed to increase their
Committed Sums or by new Lenders who have agreed to new Committed Sums
in accordance with Section 13.11.
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(b) If any Committed Sums under the Revolver Facility are
increased in accordance with this Section, Administrative Agent and
Borrower shall determine the effective date of such increase (the
"Increase Effective Date"). Administrative Agent and Borrower shall
promptly notify Revolver Lenders of the final allocation of such
increase and the Increase Effective Date. As a condition precedent to
such increase, Borrower shall deliver to the Administrative Agent (i)
a certificate of each Loan Party dated as of the Increase Effective
Date (in sufficient copies for each Revolver Lender) signed by a
Responsible Officer of such Loan Party (A) certifying and attaching
the resolutions adopted by such Loan Party approving or consenting to
such increase, (B) in the case of the Borrower, including a Compliance
Certificate demonstrating pro forma compliance with Section 9.30 after
giving effect to such increase, and (C) certifying that, before and
after giving effect to such increase, the representations and
warranties contained in Section 8 are true and correct on and as of
the Increase Effective Date and no Default or Potential Default
exists; (ii) a certificate of Borrower dated as of the Increase
Effective Date (in sufficient copies for each Revolver Lender) signed
by a Responsible Officer of Borrower certifying that the incurrence of
Debt as of the Increase Effective Date is permitted by the terms of
the documents evidencing the Subordinated Debt and attaching
calculations demonstrating the same; and (iii) such other opinions and
documents evidencing authority and compliance with the documents
evidencing the Subordinated Debt as Administrative Agent may
reasonably request. Borrower shall deliver new or amended Revolver
Notes reflecting the increased Committed Sums under the Revolver
Facility to any Lenders holding or requesting Revolver Notes. Each
new Lender acquiring a Committed Sum under the Revolver Facility shall
be a "Revolver Lender" hereunder, entitled to the rights and benefits,
and subject to the duties, of a Revolver Lender under the Loan
Documents. In such case, each Revolver Lender's Commitment Percentage
shall be recalculated to reflect the new proportionate share of the
revised Revolver Commitment and the Revolver Lenders acquiring
additional or increased Committed Sums (each a "purchasing Lender")
shall, immediately upon receiving notice from Administrative Agent,
pay to each Revolver Lender an amount equal to its pro rata share of
the Borrowings under the Revolver Facility (and any funded
participations by Revolver Lenders under the Swing Line Subfacility
and the LC Subfacility) outstanding as of such date. All such
payments with respect to the Borrowings under the Revolver Facility
shall reduce the outstanding Revolver Principal Debt owed to each
Revolver Lender receiving such payments and shall represent Borrowings
under the Revolver Facility to Borrower and be Revolver Principal Debt
owed to the purchasing Lender; all such payments with respect to
funded participations under the Swing Line Subfacility or LC
Subfacility (as the case may be) shall reduce the applicable
participation of each Revolver Lender receiving such payment and shall
represent the purchase by the purchasing Lender of a participation
under the Swing Line Subfacility or the LC Subfacility (as the case
may be). Additionally, Borrower shall pay any additional amounts
required pursuant to Section 4.5 in connection with such repayments to
any Revolver Lender. The purchasing Lender shall be entitled to share
ratably in interest accruing on the balances purchased, at the rates
provided herein for such balances, from and after the date of
purchase. All new Borrowings under the Revolver Facility occurring
after an increase of the Revolver Commitment shall be funded in
accordance with the Revolver Lender's revised Commitment Percentages.
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1.3 Interest Payments. The last sentence of Section 3.2(a) is deleted
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in its entirety and the following is substituted therefor:
"Accrued interest on each Base Rate Borrowing shall be due and
payable on each March 1, June 1, September 1, and December 1, and
on the Termination Date for the applicable Facility."
1.4 Payment of Obligation. In order to permit certain refinancings and
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conversions of the Subordinated Debt, Section 9.6 is amended by adding a
sentence at the end of such Section which reads as follows:
"Notwithstanding the foregoing, so long as no Default or
Potential Default then exists or arises as a result therefrom,
any Subordinated Debt may be refinanced with the proceeds of, or
otherwise converted into (x) Debt securities that are
subordinated to the Obligation to substantially the same or
greater extent than the Subordinated Debt being refinanced, which
do not increase the principal amount of the Subordinated Debt
from the amount of Subordinated Debt outstanding immediately
prior to such refinancing, and which otherwise satisfy the
criteria for Subordinated Debt; (y) common equity of Borrower;
and (z) other equity interests of Borrower or its Subsidiaries
(other than Redeemable Preferred Stock) that are subordinated in
right of payment to the Obligation to substantially the same or
greater extent than the Subordinated Debt being converted, are
unsecured and unguaranteed, and are otherwise in form and terms
satisfactory to Administrative Agent (in its reasonable
discretion). In addition, no Company shall make any payment on
any Subordinated Debt, when such payment violates the
subordination provisions thereof or results in a Default or
Potential Default hereunder."
1.5 Debt and Guaranties. Section 9.12 is amended to permit
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Subordinated Debt by (a) deleting the word "and" after clause (h) thereof, (b)
inserting the word "; and" after clause (i) thereof, and (c) inserting the
following phrase as clause (j) thereof:
"(j) Subordinated Debt, so long as (i) the aggregate original
principal amount of all Subordinated Debt does not exceed
$100,000,000 in the aggregate at any date of determination and
(ii) the mandatory prepayments required by Section 3.3(b)(i) are
made concurrently with the issuance of such Subordinated Debt."
1.6 Liens. Section 9.13(b) is amended by (a) deleting the word "; and"
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after clause (ix) thereof and substituting therefor a period ("."), and (b)
deleting clause (x) thereof in its entirety.
1.7 Loans, Advances, and Investments. In order to delete the reference
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to permitted sale-leaseback arrangements, Section 9.20 is amended by (i)
deleting the word "and" after clause (i) thereof, (ii) adding "; and" after
clause (h) thereof, and (iii) deleting clause (j) thereof in its entirety.
1.8 Sale of Assets. In order to delete the reference to permitted
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sale-leaseback arrangements, Section 9.23 is deleted in its entirety and the
following is substituted therefor:
"No Company shall sell, assign, transfer, or otherwise dispose of
any of its assets, other than (a) sales of inventory in the
ordinary course of business,
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(b) the sale, discount, or transfer of delinquent accounts
receivable in the ordinary course of business for purposes of
collection, (c) occasional sales of immaterial assets for
consideration not less than the fair market value thereof, (d)
dispositions of obsolete assets, (e) sale, leases, or other
disposition among Loan Parties, and (f) if no Default or Potential
Default then exists or arises as a result thereof, sales of assets,
other than those in clauses (a) through (e), for fair value for
cash or Cash Equivalents; so long as (i) the aggregate value of all
assets sold pursuant to clause (f) during any fiscal year shall not
exceed $10,000,000 and (ii) concurrently with any such disposition,
Borrower shall make the mandatory prepayments (if any) required by
Section 3.3(b)(iii)."
1.9 Sale-Leaseback Financings. Section 9.24 is amended by deleting the
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proviso thereto in its entirety.
1.10 Affiliate Subordination Agreements. Section 9.27 shall be amended
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by adding a sentence at the end of such Section which reads as follows:
"Notwithstanding the foregoing, Borrower shall not be required to
deliver to Administrative Agent such agreement with respect to any
Subordinated Debt issued on the First Amendment Date (or permitted
refinancings or conversions thereof), so long as such Subordinated
Debt otherwise satisfies the requirements for permitted
Subordinated Debt set forth in Section 9.12(j)."
1.11 Amendments to Documents. Section 9.28 is amended to prohibit
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certain modifications to the Subordinated Debt documents by (a) deleting the
word "either" immediately prior to clause (a) thereof, (b) deleting the word
"or" immediately prior to clause (b) thereof, and (c) adding the following as
clause (c) thereof prior to the period (.):
"(c) amend or modify any material (determined in the reasonable
discretion of Administrative Agent) provision of, or waive any
material (determined in the reasonable discretion of Administrative
Agent) condition under, any document or instrument evidencing or
relating to the Subordinated Debt, without obtaining prior written
consent of Administrative Agent with respect thereto"
1.12 Leverage Ratio. Section 9.30(a) shall be deleted in its entirety
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and replaced with the following:
"(i) if no Qualifying Subordinated Debt is outstanding on any date
of determination (each a "compliance date") , Borrower shall never
permit the Leverage Ratio of the Companies at any compliance date
to be greater than the ratio shown in the table below which
corresponds to the period in which the applicable compliance date
occurs (as used herein, "Qualifying Subordinated Debt" means
Subordinated Debt described in clauses (a) and (b) of the
definition of Subordinated Debt with an outstanding principal
amount of $100,000,000):
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Period Maximum Leverage Ratio
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Closing Date, to and including December 30, 3.50 to 1
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Period Maximum Leverage Ratio
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December 30, 2000
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December 31, 2000, to and including 3.25 to 1
December 30, 2002
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December 31,2002, to and including 3.00 to 1
December 30, 2003
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December 31, 2003, and thereafter 2.75 to 1
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(ii) if Qualifying Subordinated Debt is outstanding on any
compliance date, Borrower shall never permit the Leverage Ratio of
the Companies at any compliance date to be greater than the ratio
shown in the table below which corresponds to the period in which
the applicable compliance date occurs:
Period Maximum Leverage Ratio
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Closing Date, to and including n/a
December 30, 2000
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December 31, 2000, to and 4.00 to 1
including March 30, 2003
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March 31, 2003, to and 3.50 to 1
including March 30, 2004
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March 31, 2004, and thereafter 3.25 to 1
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1.13 Defaults. New Sections 10.14, 10.15, and 10.16 shall be added as
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follows:
"Section 10.14 Payment of Certain Other Agreements. The payment
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directly or indirectly (including, without limitation, any payment
in respect of any sinking fund, defeasance, redemption, or payment
of any dividend or distribution) by any Loan Party or any
Subsidiary thereof of any amount of any Subordinated Debt or any
equity interests of any Loan Party in a manner or at a time during
which such payment is not permitted under the terms of the Loan
Documents or under any instrument or document evidencing or
creating such Subordinated Debt or equity interests, including,
without limitation, any subordination provisions set forth therein.
Section 10.15 Default or Acceleration under Subordinated Debt. (a)
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The occurrence of any "default" or "event of default" or other
breach which remains uncured on any date of determination under or
with respect to the any agreement creating or evidencing any
Subordinated Debt or any equity interests of any Loan Party; (b)
the trustee with respect to, or any holder of, any Subordinated
Debt or any equity interests of any Loan Party shall effectively
declare all or any portion of that Debt or obligations thereunder
due and payable prior to the stated maturity thereof; or (c) any
Subordinated Debt or obligations under any equity interests of any
Loan Party
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becomes due before its stated maturity or redemption date (as
applicable) by acceleration of the maturity thereof.
Section 10.16 Redemption of Certain Other Debt or Obligation. If an
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event shall occur, including, without limitation, a "Change in
Control" as defined in any documents or agreements evidencing or
creating any Subordinated Debt or any equity interests of any Loan
Party, and (a) the trustee or the holders of any such Debt or
obligation shall initiate notice to request or require (or any Loan
Party shall automatically be so required) to redeem or repurchase such
Debt or obligation, or (b) any Loan Party shall initiate notice to
holders of any Subordinated Debt or any equity interests of any Loan
Party, in connection with a redemption of any Debt or any obligation
arising under such agreements or instruments."
1.14 Amendments, Consents, Conflicts, and Waivers. Section 13.11 is
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amended to address the potential for increased Committed Sums and Commitment
Percentages pursuant to Section 2.8 by (a) deleting the last sentence in clause
(b) thereof in its entirety and (b) adding a new clause (e) thereto as follows:
"(e) Any amendment to or consent or waiver under this Agreement or
any Loan Document which purports (subject to Section 2.8 or otherwise)
to increase any Lender's "Committed Sum" or "Commitment Percentage" or
add a new Revolver Lender as a new Revolver Lender pursuant to Section
2.8 must be by an instrument in writing executed by such existing
Lender or such new Revolver Lender."
1.15 Third Party Beneficiaries. A new Section 13.15 shall be added as
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follows:
"13.15 Third Party Beneficiaries. Each Loan Party and each other
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party to this Agreement intends that the Loan Documents shall not
benefit or create any Right or cause of action in or on behalf of any
Person, including without limitation the holders of the Subordinated
Debt, other than the Loan Parties and each other party to this
Agreement and their permitted successors and assigns."
1.16 Confidentiality. A new Section 13.16 shall be added as follows:
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"13.16 Confidentiality. Each of Administrative Agent and Lenders
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agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees, and agents, including
accountants, legal counsel, and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent required by any
Governmental Authority or requested by any examiner; (c) to the extent
required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e)
in connection with the exercise of any Rights hereunder or any suit,
action, or proceeding relating to this Agreement or the enforcement of
Rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of
or Participant in, any of its Rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit
derivative transaction relating to
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obligations of Borrower; (g) with the consent of Borrower; (h) to
the extent such Information (i) becomes publicly available other
than as a result of a breach of this Section or (ii) becomes
available to Administrative Agent or any Lender on a
nonconfidential basis from a source other than Borrower; or (i) to
the National Association of Insurance Commissioners or any other
similar organization or any nationally recognized rating agency
that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued
with respect to such Lender or its Affiliates. For the purposes of
this Section, "Information" means all information received from
any Loan Party relating to its respective or any other Loan
Party's business, other than any such information that is
available to Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by Borrower; provided
that, in the case of information received from Borrower after the
date hereof, such information is clearly identified in writing at
the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person
would accord to its own confidential information."
1.17 Exhibits E-2 and E-3. (a) The Form of Permitted Acquisition
Compliance Certificate set forth on Exhibit E-2 to the Credit Agreement, is
deleted in its entirety and the document labeled Exhibit E-2, Revised Form of
Permitted Acquisition Compliance Certificate attached hereto shall be
substituted therefor.
(b) The Form of Permitted Acquisition Loan Closing Certificate set forth on
Exhibit E-3 to the Credit Agreement, is deleted in its entirety and the document
labeled Exhibit E-3, Revised Form of Permitted Acquisition Loan Closing
Certificate attached hereto shall be substituted therefor.
Paragraph 2 Amendment Fees. On the Effective Date (hereinafter defined),
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Borrower shall pay (a) to each Revolver Lender consenting to this Amendment on
or prior to July 20, 2001 (the "Consent Deadline"), the "Consenting Revolver
Lenders"), an amendment fee, in an amount equal to the greater of (i) $5,000 and
(ii) 0.05% of the Committed Sum under the Revolver Facility of such Consenting
Revolver Lender as of the Effective Date and (b) to each investment advisor of
any Term Loan B Lender that is a fund or commingled investment vehicle, an
amendment fee in an amount equal to $2,500, if all Term Loan B Lenders managed
or advised by such investment advisor have consented to this Amendment on or
prior to the Consent Deadline, the "Consenting Investment Advisors"). All of
the fees required to be paid pursuant to this Paragraph 2 shall be paid to
Administrative Agent for distribution to the Consenting Revolver Lenders and the
Consenting Investment Advisors in accordance with the terms of this Paragraph 2.
The failure of Borrower to comply with the provisions of this Paragraph 2 shall
constitute a payment Default entitling Lenders to exercise their respective
Rights under the Loan Documents.
Paragraph 3 Conditions. This Amendment shall be effective on the date (the
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"Effective Date") upon which (i) the representations and warranties in this
Amendment are true and correct; (ii) Administrative Agent receives counterparts
of this Amendment executed by Borrower, each Guarantor, and Required Lenders;
(iii) Administrative Agent receives copies of the documents or instruments
creating or evidencing the Subordinated Debt, certified by Borrower to be true
and correct, and Administrative Agent has approved the terms and conditions
thereof; (iv) Administrative Agent receives evidence that Subordinated Debt has
been issued by Borrower; (v) Administrative Agent has received for distribution
to Lenders, a prepayment of the Obligation from the Net Cash Proceeds of the
Subordinated Debt in accordance with the requirements of Section 3.3(b)(i) in an
amount not less than the amount necessary to repay the Obligations arising under
the Term Loan B Facility; and (vi) Administrative Agent has received payment
from Borrower of the amendment
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fees required to be paid to Consenting Revolver Lenders, Consenting Investment
Advisors, and Administrative Agent on the Effective Date pursuant to Paragraph 2
hereof.
Paragraph 4 Acknowledgment and Ratification. As a material inducement to
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Administrative Agent and the Lenders to execute and deliver this Amendment,
Borrower and each Guarantor (a) consent to the agreements in this Amendment and
(b) agree and acknowledge that the execution, delivery, and performance of this
Amendment shall in no way release, diminish, impair, reduce, or otherwise affect
the respective obligations of Borrower or Guarantors under their respective
Collateral Documents, which Collateral Documents shall remain in full force and
effect, and all Liens, guaranties, and Rights thereunder are hereby ratified and
confirmed.
Paragraph 5 Representations. As a material inducement to Lenders to execute
---------------
and deliver this Amendment, Borrower represents and warrants to Lenders (with
the knowledge and intent that Lenders are relying upon the same in entering into
this Amendment) that as of the Effective Date of this Amendment and as of the
date of execution of this Amendment, (a) all representations and warranties in
the Loan Documents are true and correct in all material respects as though made
on the date hereof, except to the extent that (i) any of them speak to a
different specific date or (ii) the facts on which any of them were based have
been changed by transactions contemplated or permitted by the Credit Agreement,
(b) except as waived by this Amendment, no Potential Default or Default exists,
and (c) this Amendment has been duly authorized and approved by all necessary
corporate action and requires the consent of no other Person, and upon execution
and delivery, this Amendment shall be binding and enforceable against Borrower,
Parent, and each other Guarantor in accordance with its terms.
Paragraph 6 Expenses. Borrower shall pay all costs, fees, and expenses paid or
--------
incurred by Administrative Agent incident to this Amendment, including, without
limitation, the reasonable fees and expenses of Administrative Agent's counsel
in connection with the negotiation, preparation, delivery, and execution of this
Amendment and any related documents.
Paragraph 7 Miscellaneous. This Amendment is a "Loan Document" referred to in
-------------
the Credit Agreement, and the provisions relating to Loan Documents in Section
13 of the Credit Agreement are incorporated in this Amendment by reference.
Unless stated otherwise (a) the singular number includes the plural and vice
versa and words of any gender include each other gender, in each case, as
appropriate, (b) headings and captions may not be construed in interpreting
provisions, (c) this Amendment must be construed, and its performance enforced,
under New York law, (d) if any part of this Amendment is for any reason found to
be unenforceable, all other portions of it nevertheless remain enforceable, and
(e) this Amendment may be executed in any number of counterparts with the same
effect as if all signatories had signed the same document, and all of those
counterparts must be construed together to constitute the same document.
Paragraph 8 Entire Agreement. This amendment represents the final agreement
----------------
between the parties about the subject matter of this amendment and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties.
Paragraph 9 Parties. This Amendment binds and inures to Borrower, Guarantors,
-------
Administrative Agent, Lenders, and their respective successors and assigns.
The parties hereto have executed this Amendment in multiple counterparts to
be effective as of the Effective Date.
11
Remainder of the Intentionally Blank.
Signature Pages to Follow.
12
Signature Page to that certain First Amended and Restated Revolving
Credit and Term Loan Agreement dated as of the date set forth above, among
CoorsTek, Inc., as Borrower, Bank of America, N.A., as Administrative Agent, and
certain Lenders and Guarantors.
COORSTEK, INC., as Borrower
By: /s/Xxxxxx X. Xxxxxx, Xx.
-------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Chief Financial Officer, Vice
-----------------------------------
President, Secretary and
-----------------------------------
Treasurer
-----------------------------------
13
Signature Page to that certain First Amendment to First Amended and
Restated Revolving Credit and Term Loan Agreement dated as of the date set forth
above, among CoorsTek, Inc., as Borrower, Bank of America, N.A., as
Administrative Agent, and certain Lenders and Guarantors.
Alumina Ceramics, Inc., as a Guarantor
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx, Xx.
By: /s/ Xxxxxx X. Xxxxxx, Xx. ------------------------------
------------------------------- Name: Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx. -----------------------
------------------------ Title: Secretary and Treasurer
Title: Secretary and Treasurer -----------------------
------------------------
CoorsTek Worldwide Sales, Inc.,
Coors Ceramicon Designs, Ltd., as a Guarantor
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx, Xx.
By: /s/ Xxxxxx X. Xxxxxx, Xx. ------------------------------
------------------------------- Name: Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx. -----------------------
------------------------ Title: Vice President,
Title: Secretary and Treasurer -----------------------
------------------------ Secretary and
-----------------------
Treasurer
-----------------------
Coors Technical Ceramics Company, CoorsTek Texas Holding Company,
as a Guarantor as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
------------------------ -----------------------
Title: Secretary and Treasurer Title: Treasurer
------------------------ -----------------------
Coors Wear Products, Inc. CoorsTek Austin, L.P.,
as a Guarantor as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
------------------------ -----------------------
Title: Secretary and Treasurer Title: Secretary and Treasurer
------------------------ -----------------------
Xxxxxxx Enterprises,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
------------------------
Title: Secretary and Treasurer
------------------------
Xxxxxxxx International, Inc.,
Signature Page to that certain First Amendment to First Amended and
Restated Revolving Credit and Term Loan Agreement dated as of the date set forth
above, among CoorsTek, Inc., as Borrower, Bank of America, N.A., as
Administrative Agent, and certain Lenders and Guarantors.
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------
Title: Vice President
--------------------------------------
Signature Page to that certain First Amendment to First Amended and
Restated Revolving Credit and Term Loan Agreement dated as of the date set forth
above, among CoorsTek, Inc., as Borrower, Bank of America, N.A., as
Administrative Agent, and certain Lenders and Guarantors.
BANK OF AMERICA, N.A., as a Lender THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------- By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxx X. Xxxxxxxxx ---------------------------------
--------------------- Name: Xxxxxxxxxxx Xxxxx
Title: Vice President -------------------------
--------------------- Title: Vice President
-------------------------
ABN AMRO BANK, N. V., as a Lender
FIRSTAR BANK, N. A., as a Lender
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxx. X. Xxxxxx
----------------------------- ---------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxx
--------------------- -------------------------
Title: Group Vice President Title: Vice President
--------------------- -------------------------
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
---------------------
Title: Vice President
--------------------- FLEET NATIONAL BANK, as a Lender
By: /s/ Xxx X. Xxxxxx-Xxxxxxx
THE BANK OF NEW YORK, as a Lender ---------------------------------
Name: Xxx X. Xxxxxx-Xxxxxxx
By: /s/ Xxxxxx Xxxxxx -------------------------
----------------------------- Title: Director
Name: Xxxxxx Xxxxxx -------------------------
---------------------
Title: Vice President
--------------------- FRANKLIN FLOATING RATE TRUST,
as a Lender
BAYERESCHE HYPO-UND VEREINSBANK By: /s/ Xxxxxxxx Xxxxxx
AG, NEW YORK BRANCH, as a Lender ---------------------------------
Name: Xxxxxxxx Xxxxxx
By: /s/ Xxxxxxx Xxxxxx -------------------------
----------------------------- Title: Vice President
Name: Xxxxxxx Xxxxxx -------------------------
---------------------
Title: Managing Director THE FUJI BANK, LIMITED, as a Lender
---------------------
By: /s/ X. Xxxxxxx
By: /s/ Xxxxx Xx ---------------------------------
----------------------------- Name: X. Xxxxxxx
Name: Xxxxx Xx -------------------------
--------------------- Title: Senior Vice President
Title: Associate Director -------------------------
--------------------- and Manager
-------------------------
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Atilla Koc By: /s/ Xxxxxxx Xxxx
----------------------------- ---------------------------------
Name: Xxxxxx Xxx Name: Xxxxxxx Xxxx
--------------------- -------------------------
Title: Senior Vice President Title: Duly Authorized Signatory
--------------------- -------------------------
Signature Page to that certain First Amendment to First Amended and
Restated Revolving Credit and Term Loan Agreement dated as of the date set forth
above, among CoorsTek, Inc., as Borrower, Bank of America, N.A., as
Administrative Agent, and certain Lenders and Guarantors.
XXXXXX TRUST AND SAVINGS BANK, KZH LANGDALE LLC, as a Lender
as a Lender
By: /s/ Xxxxx Xxxxxxx
By: /s/ Xxxxx X. Xxxxxx --------------------------------
------------------ Name: Xxxxx Xxxxxxx
Name: Xxxxx X. Xxxxxx ------------------------
---------------------- Title: Authorized Agent
Title: Managing director ------------------------
----------------------
US BANK, N. A., as a Lender
IKB DEUTSCHE INDUSTRIEBANK A.G.,
LUXEMBOURG BRANCH, as a Lender By: /s/ Xxxxxx XxXxxxxx
--------------------------------
By: /s/ Xxx Bohorquet Name: Xxxxxx XxXxxxxx
------------------------------ ------------------------
Name: Xxx Bohorquet Title: Vice President
---------------------- ------------------------
Title: Assistant Director
---------------------- XXXXX FARGO BANK WEST, N.A., as a
Lender
By: /s/ Xxxx X. Xxxx
By: /s/ Xxxx Xxxxxxx --------------------------------
------------------------------ Name: Xxxx X. Xxxx
Name: Xxxx Xxxxxxx ------------------------
---------------------- Title: Vice President
Title: Manager ------------------------
----------------------
KEY BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxxx
----------------------
Title: Senior Vice President
----------------------
KZH SOLEIL LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
----------------------
Title: Authorized Agent
----------------------
KZH SOLEIL-2 LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
----------------------
Title: Authorized Agent
----------------------
Signature Page to that certain First Amendment to First Amended and
Restated Revolving Credit and Term Loan Agreement dated as of the date set forth
above, among CoorsTek, Inc., as Borrower, Bank of America, N.A., as
Administrative Agent, and certain Lenders and Guarantors.
ATHENA CDO, LIMITED (Acct 1277)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
CAPTIVA III FINANCE LTD. (Acct 275),
as advised by Pacific Investment Management Company LLC
By: /s/ Xxxxx Egglshaw
--------------------------------------
Name: Xxxxx Egglshaw
------------------------------
Title: Director
------------------------------
DELANO COMPANY (Acct 274)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
JISSEKIKUN FUNDING, LTD., (Acct 1288)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-------------------------
Title: Executive Vice President
