Exhibit 10.0.2
AMENDMENT AND WAIVER NO. 3
TO
CREDIT AGREEMENT
DATED AS OF JANUARY 20, 1998
THIS AMENDMENT AND WAIVER NO. 3 TO CREDIT AGREEMENT
("Amendment") is made as of the "Amendment Effective Date" (as defined
below) by and among XXXXXXX DENVER, INC. (f/k/a Xxxxxxx Denver Machinery
Inc., the "Borrower"), the financial institutions listed on the signature
pages hereof as lenders (the "Lenders"), BANK ONE, NA (f/k/a The First
National Bank of Chicago), individually as a Lender, as LC Issuer and as
agent (the "Agent") for the Lenders under that certain Credit Agreement
dated as of January 20, 1998 by and among the Borrower, the Lenders and the
Agent, as amended by that certain Amendment and Waiver No. 1 thereto dated
as of August 12, 1999 and that certain Amendment No. 2 thereto dated as of
July 28, 2000 (as so amended, the "Credit Agreement"). Defined terms used
herein and not otherwise defined herein shall have the meaning given to them
in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are
parties to the Credit Agreement;
WHEREAS, the Borrower intends to acquire (the
"Acquisition") certain agreed upon assets and liabilities of the Xxxxxxx Air
and Filtration Systems business (the "Target"), including the stock of
certain related entities and has provided the Agent and the Lenders with
historical financial statements for the Target and pro forma financial
statements for the Borrower after giving effect to the Acquisition on a
combined and consolidated basis and the acquisition described in the Notice
of Acquisition dated as of August 2, 2001 previously provided to the Agent
and Lenders;
WHEREAS, the Borrower has requested that the Lenders amend
the Credit Agreement in certain respects; and
WHEREAS, the Lenders and the Agent are willing to amend
the Credit Agreement on the terms and conditions set forth herein;
WHEREAS, the Borrower, the Lenders and the Agent desire to
waive certain requirements pertaining to the Acquisition;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and
valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Lenders and
the Agent have agreed to the following waivers of and amendments to the
Credit Agreement.
1. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the Amendment
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Effective Date and subject to the satisfaction of the conditions precedent
set forth in Section 2 below, the Credit Agreement is hereby amended as
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follows:
1.1. ARTICLE I OF THE CREDIT AGREEMENT IS HEREBY AMENDED
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BY DELETING THE DEFINITIONS OF "APPLICABLE FACILITY FEE" AND "APPLICABLE
MARGIN" IN THEIR ENTIRETY AND SUBSTITUTING THE FOLLOWING THEREFOR:
"APPLICABLE FACILITY FEE" means for any day, the
percentage rate per annum set forth below opposite the
Consolidated Debt to Cash Flow Ratio in effect on such
day:
CONSOLIDATED DEBT TO APPLICABLE
CASH FLOW RATIO: FACILITY FEE:
LESS THAN BUT GREATER
OR EQUAL TO THAN
1.5 -- .175%
2.0 1.5 .20%
2.5 2.0 .225%
3.0 2.5 .25%
3.5 3.0 .30%
The Applicable Facility Fee shall be adjusted (upward or
downward) effective three Business Days after the Agent
has received (and such adjustment, if any, shall be based
upon) the Borrower's compliance certificate delivered with
the Borrower's financial statements pursuant to clauses
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(i) and (ii) of Section 6.1.
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"APPLICABLE MARGIN" means, with respect to a Eurocurrency
Advance for any day, the percentage rate per annum set
forth below opposite the Consolidated Debt to Cash Flow
Ratio in effect on such day:
CONSOLIDATED DEBT TO APPLICABLE MARGIN:
CASH FLOW RATIO:
LESS THAN BUT GREATER
OR EQUAL TO THAN EUROCURRENCY LOANS
1.5 -- .575%
2.0 1.5 .80%
2.5 2.0 1.025%
3.0 2.5 1.25%
3.5 3.0 1.45%
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The Applicable Margin shall be adjusted (upward or
downward) effective three Business Days after the Agent
has received (and such adjustment, if any, shall be based
upon) the Borrower's compliance certificate delivered with
the Borrower's financial statements pursuant to clauses
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(i) and (ii) of Section 6.1.
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1.2. SECTION 6.12 IS DELETED IN ITS ENTIRETY AND THE
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FOLLOWING IS SUBSTITUTED THEREFOR:
6.12. Indebtedness. The Borrower will not, nor will it
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permit any Subsidiary to, create, incur or suffer to exist
any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness existing on the date hereof and
described in Schedule "2" hereto.
(iii) Contingent Obligations permitted by Section 6.16.
(iv) Hedging Obligations entered into in the ordinary
course of business as bona fide xxxxxx against interest
rate or commodity price fluctuations and not for
speculative purposes.
(v) Indebtedness of one or more Subsidiaries to the
Borrower, but only to the extent permitted by clauses (vi)
and (ix) of Section 6.15.
(vi) Additional Indebtedness of the Borrower and its
Subsidiaries in an aggregate principal amount at any one
time outstanding not to exceed the greater of (a)
$65,000,000 or (b) ten percent (10%) of Consolidated Net
Worth.
2. WAIVER. Effective as of the date hereof and subject to the
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satisfaction of the conditions precedent set forth in Section 3 below, the
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Lenders hereby waive the Borrower's non-compliance with the provisions of
Section 6.15(x) of the Credit Agreement requiring that the Lenders be
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provided with the Acquisition Financials at least 30 days prior to the
proposed acquisition. The undersigned Lenders agree that the Acquisition
Financials demonstrate to their reasonable satisfaction that, if the
Acquisition were consummated, the Borrower would be able to maintain
compliance with Sections 6.20, 6.21 and 6.22 through the Facility
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Termination Date. This specific waiver is limited to the express
circumstances described herein and shall not be construed to constitute (i)
a waiver of any other event, circumstance or condition or of any other right
or remedy available to the Agent or any Lender pursuant to the Agreement or
(ii) a consent
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to any departure by the Borrower or any Subsidiary from any other term or
requirement under the Agreement.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
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effective and be deemed effective as of the Amendment Effective Date, if,
and only if, the Agent shall have received each of the following:
(a) duly executed originals of this Amendment from the
Borrower and the Required Lenders;
(b) a certification on or before September 30, 2001 that
the Acquisition has closed (the date of such closing being the
"Amendment Effective Date");
(c) a reaffirmation from each of the Borrower's other
Subsidiaries which are parties to a Subsidiary Guaranty in the form
of Exhibit A attached hereto and made a part hereof; and
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(d) such other documents, instruments and agreements as
the Agent may reasonably request.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The Borrower
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hereby represents and warrant as follows:
(a) This Amendment and the Credit Agreement as
previously executed and as amended hereby, constitute legal, valid
and binding obligations of the Borrower and are enforceable against
the Borrower in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the
Borrower hereby reaffirms all covenants, representations and
warranties made in the Credit Agreement and other loan documents,
to the extent the same are not amended hereby, and agrees that all
such covenants, representations and warranties shall be deemed to
have been remade as of the effective date of this Amendment.
(c) Other than the Defaults waived pursuant to Section 2
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above, no Default or Unmatured Default has occurred and is
continuing under the Credit Agreement.
5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
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(a) Upon the effectiveness of Section 1 hereof, on and
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after the date hereof, each reference in the Credit Agreement to
"this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Credit Agreement, as
amended previously and as amended hereby.
(b) Except as previously amended and as specifically
amended and waived above, the Credit Agreement, as supplemented by
revised Schedule 1 (a copy of which is attached hereto) and all
other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and
effect, and are hereby ratified and confirmed.
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(c) Except to the limited extent set forth in Section 2
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above, the execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Agent or any of the Lenders, nor constitute a waiver of any
provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
6. COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
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costs, fees and out-of-pocket expenses (including attorneys' fees and
expenses charged to the Agent) incurred by the Agent in connection with the
preparation, arrangement, execution and enforcement of this Amendment.
7. GOVERNING LAW. This Amendment shall be governed by and
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construed in accordance with the internal laws (as opposed to the conflict
of law provisions) of the State of Illinois.
8. HEADINGS. Section headings in this Amendment are included
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herein for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
9. COUNTERPARTS. This Amendment may be executed by one or more
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of the parties to the Amendment on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and
the same instrument. A facsimile signature page hereto sent to the Agent or
the Agent's counsel shall be effective as a counterpart signature provided
each party executing such a facsimile counterpart agrees to deliver
originals to the Agent thereof.
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IN WITNESS WHEREOF, this Amendment and Waiver No. 3 has
been duly executed as of the day and year first above written.
XXXXXXX DENVER, INC. (formerly known as
XXXXXXX DENVER MACHINERY INC.),
as Borrower
By:
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Name:
Title:
BANK ONE, NA (formerly known as THE FIRST
NATIONAL BANK OF CHICAGO),
Individually as a Lender, as LC Issuer
and as Agent
By:
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Name:
Title:
XXXXXX BANK LTD.,
as a Lender
By:
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Name:
Title:
THE BANK OF NEW YORK,
as a Lender
By:
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
as a Lender
By:
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Name:
Title:
By:
----------------------------------------
Name:
Title:
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XXXXXX TRUST & SAVINGS BANK,
as a Lender
By:
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Name:
Title:
BANK OF AMERICA, NATIONAL
ASSOCIATION (f/k/a NationsBank, N.A.),
as a Lender
By:
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Name:
Title:
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EXHIBIT A
TO
AMENDMENT AND WAIVER NO. 3
Reaffirmation of Subsidiary Guaranty
Attached
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REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a
copy of Amendment and Waiver No. 3 to the Credit Agreement dated as of
January 20, 1998, by and among Xxxxxxx Denver, Inc. (f/k/a Xxxxxxx Denver
Machinery, Inc.), the Lenders and the Agent, as amended by that certain
Amendment and Waiver No. 1 thereto dated as of August 12, 1999 and that
certain Amendment and Waiver No. 2 thereto dated as of ___________, ____ (as
so amended, the "Credit Agreement"), which Amendment and Waiver No. 3 is
dated as of August 31, 2001 (the "Amendment"). Capitalized terms used in
this Reaffirmation and not defined herein shall have the meanings given to
them in the Credit Agreement. Without in any way establishing a course of
dealing by the Agent or any Lender, the undersigned reaffirms the terms and
conditions of the Subsidiary Guaranty dated as of January 20, 1998 executed
by it and acknowledges and agrees that such Subsidiary Guaranty and each and
every other Loan Document executed by the undersigned in connection with the
Credit Agreement remain in full force and effect and are hereby ratified,
reaffirmed and confirmed. All references to the Credit Agreement contained
in the above-referenced documents shall be a reference to the Credit
Agreement as so amended by the Amendment and as the same may from time to
time hereafter be amended, modified or restated.
XXXXXXX DENVER INTERNATIONAL, INC.
By:
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Its:
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XXXXXXX DENVER HOLDINGS INC.
By:
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Its:
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XXXXXX CORPORATION
By:
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Its:
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TCM INVESTMENTS, INC. (individually and
as successor to the business previously
conducted by Adex, Inc.)
By:
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Its:
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CRS POWER FLOW, INC.
By:
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Name:
Title:
JETTING SYSTEMS &
ACCESSORIES, INC.
By:
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Name:
Title:
XXXXX-XXXXXX EQUIPMENT CO., INC.
By:
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Name:
Title:
XXXXXXX DENVER WATER JETTING SYSTEMS, INC.
(F.K.A. BUTTERWORTH JETTING SYSTEMS, INC.)
By:
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Name:
Title:
AIR RELIEF, INC.
By:
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Name:
Title:
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