SIXTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of January 21, 1998 (this "SIXTH AMENDMENT"), is entered into between Kaynar
Technologies Inc., a Delaware corporation (the "BORROWER") and General Electric
Capital Corporation, a New York corporation (the "LENDER") and relates to that
certain Amended and Restated Credit Agreement dated as of August 12, 1996,
between the Borrower and the Lender (as previously amended as of December 17,
1996, April 30, 1997, June 25, 1997, October 23, 1997 and December 5, 1997, the
"CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender have entered into the Credit
Agreement; and
WHEREAS, the Borrower has requested that the Lender amend the Credit
Agreement to permit the Borrower to consummate the acquisition of all of the
assets and assumption of certain of the liabilities (the "ACQUISITION") of
Aerospace Precision Systems, Inc. (the "TARGET") from the Xxxxx Heirs' Trust
(the "SELLER"), as described in the draft dated January 18, 1998 of the Asset
Purchase Agreement between the Borrower and the Seller;
NOW, THEREFORE, in consideration of the above premises, the Borrower
and the Lender agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
have the meanings assigned to them in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. Upon the "Effective Date" (as
defined in SECTION 4 below), the Credit Agreement is hereby amended as follows:
2.1 AMENDMENTS TO SECTION 1.01. Section 1.01 of the Credit
Agreement is amended by adding the following definitions in proper alphabetical
order:
"APSI" means Aerospace Precision Systems, Inc., a California
corporation.
"APSI PURCHASE AGREEMENT" means the Asset Purchase Agreement
between the Borrower and the Xxxxx Heirs' Trust with respect to the
purchase by the Borrower of the assets of APSI, as delivered to and
approved by the Lender.
2.2 AMENDMENT TO SECTION 7.13. Section 7.13 of the Credit
Agreement is hereby amended by adding the following at the beginning of the
first sentence thereof:
Other than in the case of the Facility Leases (as defined in the APSI
Purchase Agreement),
2.3 AMENDMENT TO SECTION 8.01. Section 8.01 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of clause
(xi) thereof, substituting "; and" in place of the period at the end of
clause (xii) thereof and adding the following new clause (xiii):
(xiii) Indebtedness assumed pursuant to the APSI Purchase
Agreement in an aggregate principal amount not to exceed $1,500,000,
PROVIDED that such Indebtedness shall be paid in full on or before the
second Business Day after the closing of the purchase by the Borrower
of the assets of APSI.
2.3 AMENDMENT TO SECTION 8.03. Section 8.03 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of clause
(iii) thereof, substituting "; and" in place of the period at the end of clause
(iv) thereof and adding the following new clause (v):
(v) Liens on assets of APSI securing Indebtedness permitted
under SECTION 8.01(xiii).
2.4 AMENDMENT TO SECTION 8.04. Section 8.04 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of clause
(viii) thereof, substituting "; and" in place of the period at the end of clause
(ix) thereof and adding the following new clause (x):
(x) the Investment in the assets, and assumption of certain
liabilities, of APSI pursuant to the APSI Purchase Agreement.
2.5 AMENDMENT TO SECTION 8.12. Section 8.12 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of clause
(iii) thereof, substituting "; and" in place of the period at the end of clause
(iv) thereof and adding the following new clause (v):
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(v) Common Stock issued as consideration for the purchase of assets
of APSI pursuant to the APSI Purchase Agreement.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lender that, as of the Effective Date and after giving effect to
this Sixth Amendment:
(a) All of the representations and warranties of the Borrower
contained in this Sixth Amendment, the Credit Agreement and the other Loan
Documents are true and correct in all material respects on and as of the
Effective Date and on and as of the consummation of the Acquisition (the
"ACQUISITION CLOSING DATE"), in each case as if then made (other than
representations and warranties which expressly speak as of a different
date, which shall be true and correct in all material respects as of that
date);
(b) No Potential Event of Default or Event of Default has occurred or
is continuing or will result after giving effect to this Sixth Amendment
and the consummation of the Acquisition; and
(c) The representations and warranties of the Sellers (as defined in
the APSI Purchase Agreement) set forth in the APSI Purchase Agreement are
true and correct in all material respects on and as of the Acquisition
Closing Date, in each case as if then made (other than representations and
warranties which expressly speak as of a different date, which shall be
true and correct in all material respects as of that date).
4. EFFECTIVE DATE. This Sixth Amendment shall become effective as of the
date first written above (the "EFFECTIVE DATE") upon the satisfaction of each of
the following conditions:
(a) the Lender shall have received each of the following documents,
in each case in form and substance satisfactory to the Lender:
(i) counterparts hereof executed by the Borrower and the Lender;
(ii) a certificate of the chief financial officer of the
Borrower certifying that all conditions precedent to the effectiveness
of this Sixth Amendment have been satisfied;
(iii) a certificate of the Secretary or Assistant Secretary of
the Borrower dated the Effective Date certifying (A) the names and
true signatures of the incumbent officers of the Borrower authorized
to sign this Sixth Amendment and the APSI Purchase Agreement, (B) that
the By-laws of the Borrower have not been amended or otherwise
modified since the date of the most recent certification thereof by
the Secretary or Assistant Secretary of the
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Borrower delivered to the Lender and remain in full force and
effect as of the Effective Date, (C) that the Articles of
Incorporation of the Borrower have not been amended or otherwise
modified since the date of the most recent certification thereof by
the Secretary of State of Delaware delivered to the Lender and
remain in full force and effect as of the Effective Date, (D) the
resolutions of the Borrower's board of directors approving and
authorizing the execution, delivery and performance of this Sixth
Amendment and the APSI Purchase Agreement and the purchase of the
assets of APSI and (E) that the APSI Purchase Agreement (including
the exhibits and schedules thereto), as delivered to the Lender,
has not been amended or modified since the date of its delivery to
the Lender and remains in full force and effect;
(iv) evidence of publication of notice and filing with
Governmental Authorities pursuant to applicable bulk sales laws
(including without limitation Division 6 of the Uniform Commercial
Code);
(v) search reports (under APSI and each other name used within
the past five years to conduct the business to which the assets of
APSI relate) with respect to filings under the Uniform Commercial Code
(as in effect in each applicable jurisdiction) in each jurisdiction in
which assets of APSI are, or may be deemed to be, located;
(vi) a list of the street addresses of all offices and other
locations at which assets of APSI with an aggregate value in excess of
$50,000 are, or are proposed to be, located;
(vii) a list of all defined benefit plans as defined in Section
3(35) of ERISA (other than a "multiemployer plan") subject to Title IV
of ERISA in respect of which APSI or any of its ERISA Affiliates
(determined by substituting "APSI" for "Borrower" in the definition of
"ERISA Affiliate") is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA; and
(viii) such additional documentation as the Lender may
reasonably request;
(b) no law, regulation, order, judgment or decree of any Governmental
Authority shall, and the Lender shall not have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain the consummation of the Acquisition or any other transactions
contemplated by this Sixth Amendment, except for such laws, regulations,
orders or decrees, or pending or threatened litigation that in the
aggregate could not reasonably be expected to result in a Material Adverse
Effect;
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(c) all of the representations and warranties of the Borrower
contained in this Sixth Amendment, the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of
the Effective Date and on and as of the Acquisition Closing Date, in each
case as if then made (other than representations and warranties which
expressly speak as of a different date, which shall be true and correct in
all material respects as of that date);
(d) all corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the Acquisition and
any other transactions contemplated by this Sixth Amendment shall be
satisfactory in all respects in form and substance to the Lender; and
(e) no Event of Default or Potential Event of Default shall have
occurred and be continuing on the Effective Date or the Acquisition Closing
Date or will result after giving effect to this Sixth Amendment and the
consummation of the Acquisition.
5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the Effective Date, each reference in the Credit Agreement
to "this Agreement", "hereunder", "hereof" or words of like import, and
each reference in the other Loan Documents to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as amended hereby.
(b) This Sixth Amendment shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment of any
other term or condition of the Credit Agreement or any other Loan Document,
(ii) prejudice any right or rights which the Lender or Lender Parties may
now have or may have in the future under or in connection with the Credit
Agreement or any other Loan Document, (iii) require the Lender to agree to
a similar transaction on a future occasion or (iv) create any rights herein
to another Person or other beneficiary or otherwise, except to the extent
specifically provided herein.
(c) Except to the extent specifically consented to herein, the
respective provisions of the Credit Agreement and the other Loan Documents
shall not be amended, modified, impaired or otherwise affected hereby, and
such documents and the Obligations under each of them are hereby confirmed
in full force and effect.
6. MISCELLANEOUS. This Sixth Amendment is a Loan Document. The headings
herein are for convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
7. COUNTERPARTS. This Sixth Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when
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so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
8. GOVERNING LAW. THIS SIXTH AMENDMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this Sixth
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
KAYNAR TECHNOLOGIES INC.
By:
---------------------------
Xxxxx X. Xxxxxx
Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------
Name:
Authorized Signatory
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