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EXHIBIT 10.73
SECOND AMENDMENT AND WAIVER
SECOND AMENDMENT AND WAIVER, dated as of February 24, 2000
(this "Amendment"), to the Credit Agreement, dated as of January 12, 1999 (as
modified hereby and as further amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among DENALI INCORPORATED, a Delaware
corporation (the "Borrower"), the several lenders from time to time parties
thereto (the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders, and ING
(U.S.) CAPITAL LLC, as documentation agent (the "Documentation Agent").
RECITALS
The Borrower anticipates that it shall default in its
obligation to comply with certain financial covenants contained in the Credit
Agreement for the period ending on December 31, 1999. The Borrower has
requested the Administrative Agent and the Lenders to waive existing defaults
arising from such non-compliance and to amend certain provisions of the Credit
Agreement as set forth in this Amendment. The Administrative Agent, the
Documentation Agent and the Lenders parties hereto are willing to agree to such
waivers and amendments, but only on the terms and subject to the conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Borrower, the Administrative Agent, the Documentation
Agent and the Lenders hereby agree as follows:
1. DEFINED TERMS. UNLESS OTHERWISE DEFINED HEREIN, TERMS DEFINED IN THE
CREDIT AGREEMENT ARE USED HEREIN AS THEREIN DEFINED.
2. AMENDMENTS. THE CREDIT AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
(a) Section 1.1 is hereby amended by adding the following definitions to be
placed in alphabetical order:
"'Equity Investment': equity contributions into the Borrower
pursuant to the issuance of common or preferred stock of the Borrower
in a net amount of at least $7,500,000, pursuant to an equity offering
made for purposes of satisfying the requirements of this Agreement,
pursuant to terms satisfactory to the Administrative Agent, the
Documentation Agent and the Lenders."
"'Equity Investment Date': the date on which the Equity
Investment is consummated."
"'Second Amendment and Waiver': the Second Amendment and
Waiver, dated as of February 24, 2000, among the Borrower, the
Administrative Agent, the Documentation Agent and the Lenders parties
thereto."
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"'Second Amendment Effective Date': the date on which all
conditions precedent to the effectiveness of the Second Amendment and
Waiver have been satisfied."
(b) The definition of "Applicable Margin" contained in Section 1.1 of the
Credit Agreement is hereby amended by deleting such definition in its entirety
and substituting in lieu thereof the following new definition:
"'Applicable Margin': (a) with respect to each Revolving
Credit Loan and Term Loan, at any time on which the Domestic Leverage
Ratio, as most recently determined as of the date on which the
certificate containing such Domestic Leverage Ratio is delivered
pursuant to Section 9.2(a) hereof, is within any range set forth
below, the rate per annum set forth under the relevant column headings
opposite the applicable range below:
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Domestic Leverage Ratio Base Rate Eurodollar Loans
Loans
------------ --------------------------------- ---------- ----------------
Tier 7 greater than or equal to 4.25 2.75% 4.00%
------------ --------------------------------- ---------- ----------------
Tier 6 greater than or equal to 4.00 but 2.50% 3.75%
less than 4.25
------------ --------------------------------- ---------- ----------------
Tier 5 greater than or equal to 3.75 but 2.25% 3.50%
less than 4.00
------------ --------------------------------- ---------- ----------------
Tier 4 greater than or equal to 3.50 but 2.00% 3.25%
less than 3.75
------------ --------------------------------- ---------- ----------------
Tier 3 greater than or equal to 3.25 but 1.75% 3.00%
less than 3.50
------------ --------------------------------- ---------- ----------------
Tier 2 greater than or equal to 3.00 but 1.50% 2.75%
less than 3.25
------------ --------------------------------- ---------- ----------------
Tier 1 less than 3.00 1.25% 2.50%
------------ --------------------------------- ---------- ----------------
provided, that in the event that the certificate containing the
determination of the Domestic Leverage Ratio is not delivered on the
date specified and otherwise in accordance with to Section 9.2(a)
hereof, the applicable margin shall be the highest rate per annum for
such Type of Loan set forth above from the date on which such
certificate was required to be delivered in accordance with Section
9.2(a) until such time as such certificate is delivered to the
Lenders; provided, further, that, notwithstanding anything to the
contrary contained in the Credit Agreement, during the period from and
including February 15, 2000 to May 15, 2000, the applicable margin
will be deemed to be at Tier 5 grid pricing; and
(b) with respect to each Acquisition Loan, at any time on
which the Domestic Leverage Ratio, as most recently determined as of
the date on which the certificate containing such Domestic Leverage
Ratio is delivered pursuant to Section 9.2(a) hereof, is within any
range set forth below, the rate per annum set forth under the relevant
column headings opposite the applicable range below:
Domestic Leverage Ratio Base Rate Loans Eurodollar Loans
------------ ---------------------------------- --------------- ----------------
Tier 7 greater than or equal to 4.25 3.25% 4.50%
------------ ---------------------------------- --------------- ----------------
Tier 6 greater than or equal to 4.00 but 3.00% 4.25%
less than 4.25
------------ ---------------------------------- --------------- ----------------
Tier 5 greater than or equal to 3.75 but 2.75% 4.00%
less than 4.00
------------ ---------------------------------- --------------- ----------------
Tier 4 greater than or equal to 3.50 but 2.50% 3.75%
less than 3.75
------------ ---------------------------------- --------------- ----------------
Tier 3 greater than or equal to 3.25 but 2.25% 3.50%
less than 3.50
------------ ---------------------------------- --------------- ----------------
Tier 2 greater than or equal to 3.00 but 2.00% 3.25%
less than 3.25
------------ ---------------------------------- --------------- ----------------
Tier 1 less than 3.00 1.75% 3.00%
------------ ---------------------------------- --------------- ----------------
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provided, that in the event that the certificate containing the
determination of the Domestic Leverage Ratio is not delivered on the
date specified and otherwise in accordance with to Section 9.2(a)
hereof, the applicable margin shall be the highest rate per annum for
such Type of Loan set forth above from the date on which such
certificate was required to be delivered in accordance with Section
9.2(a) until such time as such certificate is delivered to the
Lenders; provided, further, that, notwithstanding anything to the
contrary contained in the Credit Agreement, during the period from and
including February 15, 2000 to May 15, 2000, the applicable margin
will be deemed to be at Tier 5 grid pricing.
(c) The definition of "Acquisition Loan Commitment Termination Date"
contained in Section 1.1 of the Credit Agreement is hereby amended by deleting
such definition in its entirety and replacing in lieu thereof the following new
definition:
"'Acquisition Loan Commitment Termination Date': the Second
Amendment Effective Date."
(d) Section 6.5(c) of the Credit Agreement is hereby amended by adding
the following provision at the end thereof:
"Notwithstanding anything to the contrary in this Section,
the Borrower shall prepay the Loans and reduce the Commitments in an
amount equal to 100% of the Equity Investment to be allocated as set
forth below. The first $7,500,000 of the amounts relating to the
Equity Investment so prepaid shall be applied pro rata to the
outstanding Term Loans and the Acquisition Loans to the installments
of principal thereof pro rata over the remaining installments. Amounts
relating to the Equity Investment in excess of $7,500,000 so prepaid
shall be applied to the prepayment of any Revolving Credit Loans
and/or cash collateralization of any Letters of Credit but without a
concomitant reduction of the Revolving Credit Commitments. Without
changing the order of priority of payments outlined above, the amounts
prepaid shall be applied first to Base Rate Loans and second to
Eurodollar Loans."
(e) Schedule 1 of the Credit Agreement is hereby amended by deleting
such Schedule in its entirety and substituting in lieu thereof a new Schedule 1
attached hereto.
(f) Schedule 3.2 of the Credit Agreement is hereby amended by (i)
deleting the phrase "the first payment date to occur following the Acquisition
Loan Commitment Termination Date" commencing on the second line thereof and
substituting in lieu thereof "September 30, 2000" and (ii) deleting the phrase
"the Acquisition Loan Commitment Termination Date" commencing on the fifth line
thereof and substituting in lieu thereof "September 30, 2000".
3. Equity Investment. (a) The Borrower shall arrange and cause to be
invested in the Borrower the Equity Investment, which shall be consummated on
or prior to July 31, 2000.
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(b) On the Second Amendment Effective Date, the Borrower shall issue
to each Lender, pro rata based upon such Lender's aggregate outstanding
Commitment and aggregate outstanding principal amount of its Loans, a series of
warrants to purchase common stock of the Borrower substantially in the forms of
Exhibits A-1 through A-6 attached hereto, with appropriate insertions and
completions (the "Warrants"). In the event that the Equity Investment does not
occur on or prior to July 31, 2000, the Warrants shall entitle each Lender to
purchase its ratable portion of 250,000 shares of common stock of the Borrower
at a price equal to $0.01 per share. In the event that the Equity Investment
does not occur on or prior to August 31, 2000, the Warrants shall entitle each
Lender to purchase its ratable portion of an additional 250,000 shares of
common stock of the Borrower at a price equal to $0.01 per share. In the event
that the Equity Investment does not occur on or prior to September 30, 2000,
the Warrants shall entitle each Lender to purchase its ratable portion of an
additional 200,000 shares of common stock of the Borrower at a price equal to
$0.01 per share. In the event that the Equity Investment does not occur on or
prior to October 31, 2000, the Warrants shall entitle each Lender to purchase
its ratable portion of an additional 100,000 shares of common stock of the
Borrower at a price equal to $0.01 per share. In the event that the Equity
Investment does not occur on or prior to November 30, 2000, the Warrants shall
entitle each Lender to purchase its ratable portion of an additional 100,000
shares of common stock of the Borrower at a price equal to $0.01 per share. In
the event that the Equity Investment does not occur on or prior to December 31,
2000, the Warrants shall entitle each Lender to purchase its ratable portion of
an additional 100,000 shares of common stock of the Borrower at a price equal
to $0.01 per share.
(c) The Company shall promptly notify the Administrative Agent in
writing upon the consummation of the Equity Investment and the occurrence of
the Equity Investment Date, such notice to set forth the amount of the Equity
Investment and such other information relevant thereto as the Administrative
Agent may reasonably request. Upon receipt of such notice, the Administrative
Agent shall notify each Lender thereof.
(d) The Lenders acknowledge that neither the Warrants nor the shares
of the Borrower's common stock issuable upon exercise of the Warrants have been
registered under the Securities Act of 1933, as amended (the "Act"). The
Lenders agree that (i) no public distribution of the Warrants or shares
issuable upon exercise of the Warrants will be made in violation of the Act,
and (ii) during such period as the delivery of a prospectus with respect to the
Warrants or such shares may be required by the Act, no public distribution of
the Warrants or such shares will be made in a manner or on terms different from
those set forth in, or without delivery of, a prospectus then meeting the
requirements of Section 10 of the Act and in compliance with all applicable
state securities laws. The Lenders further agree that if any distribution of
any of the Warrants or such shares is proposed to be made by them otherwise
than by delivery of a prospectus meeting the requirements of Section 10 of the
Act, such action shall be taken only after submission to the Company of an
opinion of counsel, reasonably satisfactory in form and substance to the
Company's counsel, to the effect that the proposed distribution will not be in
violation of the Act or of applicable state law.
4. COMMITMENT CHANGES.
(a) On the Second Amendment Effective Date, the aggregate Revolving
Credit Commitments shall be increased from $20,000,000 to $25,000,000.
(b) On the Second Amendment Effective Date, the unused Acquisition
Loan Commitments shall be terminated.
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(c) On the Second Amendment Effective Date, the Borrower shall be
deemed to have requested and the Lenders shall be deemed to have made Revolving
Credit Loans in the amount of $3,000,000, the proceeds of which shall be
automatically applied to the outstanding principal balance of the Acquisition
Loans, thus reducing the aggregate outstanding principal balance of the
Acquisition Loans to $15,300,000.
(d) On the earlier to occur of (i) July 31, 2000 and (ii) the Equity
Investment Date, the Borrower shall be deemed to have requested and the Lenders
shall be deemed to have made Revolving Credit Loans in the amount of
$2,000,000, the proceeds of which shall be automatically applied to the
outstanding principal balance of the Acquisition Loans.
5. Waivers. Each of the Administrative Agent, the Documentation Agent and
each of the Lenders hereby waives any Default or Event of Default under Section
11(c) of the Credit Agreement relating solely to the failure of the Borrower to
comply with the financial covenants contained in Section 10.1 of the Credit
Agreement as of December 31, 1999; provided, that this waiver shall cease to be
effective if the Domestic Leverage Ratio of the Borrower as of December 31,
1999 shall exceed 4.35 to 1.00 or the Senior Domestic Leverage Ratio of the
Borrower as of December 31, 1999 shall exceed 4.25 to 1.00. The foregoing
Waiver shall only be effective upon the receipt by the Administrative Agent of
a fully executed and delivered, unconditional waiver by the holders of the
Permanent Subordinated Debt, in form and substance satisfactory to the
Administrative Agent, the Documentation Agent and the Lenders.
6. Forbearance and Reservation of Rights. The Administrative Agent, the
Documentation Agent and the Lenders hereby advise the Borrower that, except as
set forth in Section 5 hereof, the Administrative Agent, the Documentation
Agent and the Lenders do not waive any Default or Event of Default which may
exist and that the current non-exercise of rights, remedies, powers and
privileges by the Administrative Agent, the Documentation Agent or the Lenders
under the Loan Documents and applicable law with respect to such Defaults or
Events of Default, if any, shall not be, and shall not be construed as, a
waiver thereof, and each of the Administrative Agent, the Documentation Agent
and the Lenders reserves its rights (i) fully to invoke any and all such
rights, remedies, powers and privileges under the Loan Documents and applicable
law at any time the Administrative Agent, the Documentation Agent and the
Lenders deem appropriate in respect of any Defaults or Events of Default that
may exist, (ii) to refuse to make available any further extensions of credit
except in strict accordance with the terms of the Loan Documents and (iii) to
require that all Loans bear interest at the rates specified in the Loan
Agreement. Nothing in this Amendment, and no extension of credit made by any
Lender on or after the date of any such Event of Default (whether prior to or
after the date of this Amendment) shall be construed as an acknowledgment or
determination by the Administrative Agent, the Documentation Agent or any
Lender that no Default or Event of Default has occurred or is continuing or
that such Defaults or Events of Default have been waived.
7. Amendment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender that executes this Second Amendment and Waiver
on or before March 1, 2000, an amendment fee in an aggregate amount equal to
$145,750 (the "Amendment Fee"). Such Amendment Fee shall be due and payable
upon the earlier of (i) July 31, 2000, or (ii) the Equity Investment Date.
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8. Effectiveness. This Amendment shall become effective upon the
satisfaction of the following conditions precedent:
(a) this Amendment shall have been duly executed and delivered by the
Borrower, the Administrative Agent, Lenders and each of the Guarantors;
(b) the Administrative Agent shall have received replacement Revolving
Credit Notes for each Lender holding a Revolving Credit Commitment, duly
executed and delivered by the Borrower;
(c) the Administrative Agent shall have been reimbursed for all fees
and expenses required to be paid pursuant to the Credit Agreement or this
Amendment; and
(d) the Administrative Agent shall have received any other documents
relating hereto that shall be reasonably requested by the Administrative Agent.
9. Warrant Delivery. The Borrower shall deliver a Warrant for each Lender,
duly executed by the Borrower, to the Administrative Agent no later than 14
calendar days following the Second Amendment Effective Date. Failure to deliver
such Warrants during such period shall constitute an Event of Default under the
Credit Agreement.
10. Representations and Warranties. To induce the Administrative Agent, the
Documentation Agent and the Lenders to enter into this Amendment, the Borrower
hereby represents and warrants to the Administrative Agent, the Documentation
Agent and the Lenders that, after giving effect to the amendments and waivers
provided for herein, and other than as set forth in Section 5 hereof, the
representations and warranties contained in the Credit Agreement and the other
Loan Documents will be true and correct in all material respects as if made on
and as of the date hereof and that, other than as set forth in Section 5
hereof, no Default or Event of Default will have occurred and be continuing.
11. No Other Amendments or Waivers. Except as expressly amended or waived
hereby, the Credit Agreement, the Notes and the other Loan Documents shall
remain in full force and effect in accordance with their respective terms,
without any waiver, amendment or modification of any provision thereof.
12. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
13. Expenses. The Borrower agrees to pay and reimburse the Administrative
Agent for all of the out-of-pocket costs and expenses incurred by the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including, without limitation, the fees and disbursements of
Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the Administrative Agent.
14. Applicable Law. this Amendment shall be governed by, and construed
and interpreted in accordance with, the law of the state of New York.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
DENALI INCORPORATED.
By: /s/ R. XXXXX XXXXXXX
---------------------------------------
Name: R. Xxxxx Xxxxxxx
Title: Vice President/CFO
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Director
CIBC World Markets Corp.
ING (U.S.) CAPITAL LLC,
as Documentation Agent and as a Lender
By: /s/ XXXX XXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
CIBC INC.,
as a Lender
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Director
CIBC World Markets Corp.
KEY CORPORATE CAPITAL INC.,
as a Lender
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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BANK OF OKLAHOMA N.A.,
as a Lender
By: /s/ XXXXXX X. BEEN
---------------------------------------
Name: Xxxxxx X. Been
Title: Assistant Vice President
SOUTHWEST BANK OF TEXAS, N.A.,
as a Lender
By: /s/ XX XXXXX
--------------------------------------
Name: Xx Xxxxx
Title: Senior Vice President
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The undersigned guarantors hereby consent and agree to the foregoing
Amendment:
CONTAINMENT SOLUTIONS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
CONTAINMENT SOLUTIONS SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
INSTRUMENTATION SOLUTIONS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
DENALI MANAGEMENT, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
SPECIALTY SOLUTIONS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
BELCO MANUFACTURING COMPANY, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
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ERSHIGS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
SEFCO, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
FIBERCAST COMPANY
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
PLASTI-FAB, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
DENALI HOLDINGS MANAGEMENT L.L.C.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary
DENALI OPERATING MANAGEMENT, LTD.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Secretary of
Denali Management Inc.
and Denali Holdings
Management L.L.C.,
General Partners
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SCHEDULE 1
LENDERS, COMMITMENTS AND APPLICABLE LENDING OFFICES
Lender and Lending Offices Term Loan Acquisition Loan Revolving Credit
Commitment Commitment Commitment
----------------------------------- -------------------- ---------------------- ----------------------
$4,200,000 $3,570,000 $5,833,333.34
CIBC Inc.
Applicable Lending Offices:
Base Rate Loans and Eurodollar
Loans:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency
Services/Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
----------------------------------- -------------------- ---------------------- ----------------------
ING (U.S.) Capital LLC
Applicable Lending Offices: $4,200,000 $3,570,000 $5,833,333.33
Base Rate Loans and Eurodollar
Loans:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
----------------------------------- -------------------- ---------------------- ----------------------
Key Corporate Capital Inc.
Applicable Lending Offices: $4,200,000 $3,570,000 $5,833,333.33
Base Rate Loans and Eurodollar
Loans:
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
----------------------------------- -------------------- ---------------------- ----------------------
Bank of Oklahoma, N.A.
Applicable Lending Offices: $3,600,000 $3,060,000 $5,000,000.00
Base Rate Loans and Eurodollar
Loans:
Bank of Oklahoma Tower
0 X.X. Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
----------------------------------- -------------------- ---------------------- ----------------------
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Term Loan Acquisition Loan Revolving Credit
Lender & Lending Offices Commitment Commitment Commitment
----------------------------------- -------------------- ---------------------- ----------------------
SouthWest Bank of Texas, N.A. $1,800,000 $1,530,000 $2,500,000.00
Applicable Lending Offices:
Base Rate Loans and Eurodollar
Loans:
0 Xxxx Xxx Xxxx
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx XxXxx
Telephone: 000-000-0000
Telecopy:
----------------------------------- -------------------- ---------------------- ----------------------
Total: $18,000,000 $15,300,000 $25,000,000
=========== =========== ===========
(Unused Commitment is
Terminated as of
February 24, 2000)
==================
----------------------------------- -------------------- ---------------------- ----------------------
