Exhibit 10.42
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of October
31, 2003 (this "Amendment"), is among KEY COMPONENTS, LLC (the "Borrower"), the
Lenders (as defined below) signatories hereto and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, certain Subsidiaries (such capitalized term and other
capitalized terms used in these recitals to have the meanings set forth or
defined by reference in Part I below) and other equity holders, as Guarantors,
certain financial institutions and other Persons from time to time parties
thereto (collectively, the "Lenders"), the Administrative Agent, Societe
Generale, as the Syndication Agent, The Bank of New York , as the Documentation
Agent, and Wachovia Securities and XX Xxxxx Securities Corporation, as
Co-Arrangers, are parties to the Credit Agreement, dated as of September 29,
2000 (as amended, restated, supplemented or otherwise modified prior to the date
hereof, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend the Existing Credit
Agreement as set forth below; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects (the Existing Credit Agreement, as so amended or otherwise modified by
this Amendment, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Foreign Subsidiary" is defined in Subpart 2.1.1 of the Second Amendment.
"Lenders" is defined in the first recital.
"Second Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided in the
Existing Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS, CONSENT AND WAIVER
Effective on (and subject to the occurrence of) the Second Amendment Effective
Date, the Existing Credit Agreement is hereby amended in accordance with this
Part; except as so amended or otherwise modified by this Amendment, the Existing
Credit Agreement and the Loan Documents shall continue in full force and effect
in accordance with their terms.
SUBPART 2.1. Amendment to Article I. Article I of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.1.1 through 2.1.3.
SUBPART 2.1.1. Section 1.1 of the Existing Credit
Agreement is hereby amended by inserting the following definitions
therein in the appropriate alphabetical order:
"Foreign Subsidiary" means any Subsidiary that is not
organized under the laws of any political subdivision of the
United States (other than Puerto Rico).
"Poly-Scientific Transaction" means the proposed
acquisition by the Borrower, or a Subsidiary thereof, of the
Poly-Scientific division of Northrop Grumman Corp., which
proposed acquisition did not close.
"PRC Subsidiary" means Gits Engineered Components
Shanghai LLC, a newly formed Subsidiary of the Borrower to be
organized under the laws of the People's Republic of China.
"Second Amendment" means the Second Amendment, dated
as of October 31, 2003, to this Agreement among the Borrower,
the Administrative Agent and the Lenders party thereto.
"Second Amendment Effective Date" is defined in
Subpart 3.1 of the Second Amendment.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending and restating the grid table included in the
definition of "Applicable Margin" to read in its entirety as follows:
Applicable Applicable Applicable
Funded Debt to Margin For Margin For Margin For
EBITDA Ratio Base Rate Loans LIBO Rate Loans Commitment Fees
------------------------------ --------------- --------------- ----------------
Less than 3.50:1 1.25% 2.50% 0.375%
Greater than or equal to 2.00% 3.25% 0.375%
3.50:1 and less than 4.00:1
Greater than or equal to 2.25% 3.50% 0.500%
4.00:1 and less than 4.25:1
Greater than or equal to 2.50% 3.75% 0.500%
4.25:1
SUBPART 2.1.3. Section 1.1 of the Existing Credit
Agreement is hereby further amended by amending the definition of
"EBITDA" appearing therein by (a) deleting the proviso at the end of
the clause (i) thereof, (b) deleting the punctuation xxxx "." appearing
at the end of clause (j) thereof and inserting the punctuation xxxx ";"
in replacement therefor and (c) inserting the following immediately
after clause (j) thereof:
"plus
(k) non-recurring charges for such Rolling Period incurred in
connection with the Poly-Scientific Transaction on terms agreed to by
the Administrative Agent (in its reasonable discretion) (provided that
the aggregate amount of such charge shall not exceed $350,000)."
SUBPART 2.2. Amendment to Article VII. Article VII of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.2.1 through 2.2.5.
SUBPART 2.2.1. Clause (b)(ii) of Section 7.1.11 of the
Existing Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"(ii) take any action to perfect the security
interest created under the Security Agreements in personal
property or other assets of any Foreign Subsidiary under the
local law of any of the applicable jurisdictions identified in
this Section 7.1.11(b)(ii), which personal property and other
assets are located at a place of business of the Borrower or
any of its Subsidiaries in the Kingdom of Thailand, the United
Mexican States, or the People's Republic of China, so long as
the aggregate value of all such personal property and other
assets that consist of equipment and inventory (as those terms
are used in the U.C.C.) as to which the Lenders do not have a
fully perfected security interest under such applicable local
law does not exceed, in the case of equipment and inventory
located in the United Mexican States, $7,000,000, in the case
of equipment and inventory located in the Kingdom of Thailand,
$2,500,000, and in the case of equipment and inventory located
in the People's Republic of China, $4,500,000."
SUBPART 2.2.2. Clause (a) of Section 7.2.4 of the Existing
Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"(a) the Interest Coverage Ratio, as of the last day
of each Fiscal Quarter falling in the periods set forth below,
to be less than the ratio set forth opposite such period:
Fiscal Quarters ending Minimum Interest
in the following periods Coverage Ratio
------------------------ ----------------
September 30, 2003 through September 29, 2004 2.75 to 1.0
September 30, 2004 through March 30, 2005 3.00 to 1.0
March 31, 2005 and thereafter 4.00 to 1.0"
SUBPART 2.2.3. Clause (b) of Section 7.2.4 of the Existing
Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"(b) the Fixed Charge Coverage Ratio, as of the last
day of each Fiscal Quarter falling in the periods set forth
below, to be less than the ratio set forth opposite such
period:
Fiscal Quarters ending Minimum Interest
in the following periods Coverage Ratio
------------------------ ----------------
September 30, 2003 through March 30, 2005 1.00 to 1.0
March 31, 2005 and thereafter 1.10 to 1.0"
SUBPART 2.2.4. Clause (c) of Section 7.2.4 of the Existing
Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"(c) the Funded Debt to EBITDA Ratio, as of the last
day of each Fiscal Quarter falling in the periods set forth
below, to be greater than the ratio set forth opposite such
period:
Fiscal Quarters ending Maximum Funded Debt
in the following periods to EBITDA Ratio
------------------------ ------------------
September 30, 2003 through September 29, 2004 4.25 to 1.0
September 30, 2004 through March 30, 2005 4.00 to 1.0
March 31, 2005 and thereafter 2.75 to 1.0"
SUBPART 2.2.5. Section 7.2.7 of the Existing Credit Agreement
is hereby amended and restated to read in its entirety as follows:
"SECTION 7.2.7. Capital Expenditures, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, make or commit to
make, without duplication, Capital Expenditures in any Fiscal Year in
an aggregate amount in excess of the sum of the following:
(a)(i) during each of Fiscal Year 2003 and 2004 an
amount equal to $5,500,000 and, (ii) during any Fiscal Year
thereafter an amount equal to $7,500,000;
plus
(b) any amount permitted to be expended in respect of
Capital Expenditures in the immediately preceding Fiscal Year
pursuant to clause (a) above but not so expended; provided,
however, that any unused amount of Capital Expenditures during
Fiscal Year 2002 may not be carried forward to any subsequent
period."
SUBPART 2.3 Consent and Waiver. The Administrative Agent and
the Required Lenders hereby agree to the following consents and waivers with
respect to the PRC Subsidiary.
SUBPART 2.3.1. Nothwithstanding the provisions of Section
7.2.5. of the Credit Agreement to the contrary, the Borrower and its applicable
Subsidiaries may form and make Investments in the PRC Subsidiary; provided that,
the aggregate amount of all Investments in all Foreign Subsidiaries (including,
without limitation, the initial capitalization thereof) shall not exceed
$5,000,000 during the term of the Credit Agreement.
SUBPART 2.3.2. Until such date (any such date, the "Trigger
Date") as any Foreign Subsidiary is required to take any action to perfect the
security interest created under the Security Agreements in personal property or
other assets located in the jurisdiction of formation of such Foreign Subsidiary
under the local law of such jurisdiction pursuant to clause (b)(ii) of Section
7.1.11 of the Credit Agreement, the Lenders hereby waive compliance by the
Borrower and its applicable Subsidiaries with the requirements of Section 7.1.8,
solely with respect to its Foreign Subsidiaries. The Borrower hereby agrees to
pledge or cause its applicable Subsidiaries to pledge sixty-five (65%) of the
Capital Securities of each applicable Foreign Subsidiary within forty-five (45)
days of the applicable Trigger Date for such Foreign Subsidiary, if any;
provided that such forty-five (45) day period may be extended by the
Administrative Agent in its sole discretion.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effectiveness. This Amendment and the amendments contained herein
shall become effective on the date (the "Second Amendment Effective Date") when
each of the conditions set forth in this Part shall have been fulfilled to the
satisfaction of the Administrative Agent.
SUBPART 3.1.1. Execution of Counterparts. The
Administrative Agent shall have received counterparts of this
Amendment, duly executed and delivered on behalf of each Borrower, the
Administrative Agent and the Required Lenders.
SUBPART 3.1.2. Amendment Fee. The Administrative
Agent shall have received, for the account of each Lender which shall
have executed this Amendment concurrently with or prior to the
effectiveness hereof, an amendment fee in an aggregate amount equal to
0.125% of the aggregate amount of each such Lender's Percentage of the
Total Exposure Amount.
SUBPART 3.1.3. Affirmation and Consent. The
Administrative Agent shall have received, with counterparts for each
Lender, an Affirmation and Consent to this Amendment substantially in
the form of Exhibit A hereto, duly executed and delivered by each of
the Obligors other than the Borrower.
SUBPART 3.1.4. Legal Details, etc. All documents
executed or submitted pursuant hereto shall be satisfactory in form and
substance to the Administrative Agent and its counsel. The
Administrative Agent and its counsel shall have received all
information and such counterpart originals or such certified or other
copies or such materials as the Administrative Agent or its counsel may
reasonably request, and all legal matters incident to the transactions
contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
PART IV
MISCELLANEOUS; REPRESENTATIONS AND COVENANTS
SUBPART 4.1. Continuing Effectiveness, etc. As amended hereby, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Second Amendment Effective Date, all
references in the Credit Agreement and each other Loan Document to the "Credit
Agreement" shall refer to the Existing Credit Agreement, after giving effect to
this Amendment, and this Amendment shall be a Loan Document for all purposes.
The Borrower hereby confirms its obligations under Section 11.3 of the Credit
Agreement to pay all fees and expenses of the Administrative Agent (including
reasonable fees and out-of-pocket expenses of counsel) in connection with this
Amendment and other ongoing administration of the Credit Agreement as provided
in Section 11.3 of the Credit Agreement since the last invoice it received.
SUBPART 4.2. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
SUBPART 4.3. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART 4.4. Successors and Assigns. This Amendment shall be binding upon the
Borrower, the Lenders and the Agents and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Lenders and the
Agents and their respective successors and assigns.
SUBPART 4.5. Representations and Warranties. In order to induce the Lenders to
execute and deliver this Amendment, the Borrower represents and warrants to the
Agents, the Lenders and the Issuer that, after giving effect to the terms of
this Amendment, the following statements are true and correct: (a) the
representations and warranties set forth in Article VI of the Existing Credit
Agreement and in the other Loan Documents are true and correct on the Second
Amendment Effective Date as if made on the Second Amendment Effective Date and
after giving effect to the Second Amendment (unless stated to relate solely to
an earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date); and (b) no Default
has occurred and is continuing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective authorized officers as of the day and
year first above written.
KEY COMPONENTS, LLC
By: /s/ Xxxxx X. XxXxxxx
--------------------
Title: CFO
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By:
-----------------------------------------
Title:
SOCIETE GENERALE,
as Syndication Agent and as a Lender
By:
-----------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
-----------------------------------------
Title:
EUROPEAN AMERICAN BANK
By:
-----------------------------------------
Title:
PROVIDENT BANK OF CINCINNATI
By:
-----------------------------------------
Title:
THE BANK OF NEW YORK, as Documentation
Agent and as a Lender
By:
-----------------------------------------
Title:
CITIZENS BANK OF MASSACHUSETTS
By:
-----------------------------------------
Title:
FLEET CAPITAL CORPORATION
By:
-----------------------------------------
Title:
EAST WEST BANK
By:
-----------------------------------------
Title:
CERES II FINANCE LTD.
By: Patriarch Partners IX, LLC,
its Managing Agent
By:
-----------------------------------------
Title:
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By:
-----------------------------------------
Title:
1888 FUND, LTD.
By:
-----------------------------------------
Title:
CALLADIUS CAPITAL
By:
-----------------------------------------
Title:
Exhibit A
AFFIRMATION AND CONSENT
-----------------------
October 31, 2003
The Lenders (as defined below) and
Wachovia Bank, National Association,
as Administrative Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
KEY COMPONENTS, LLC
Gentlemen and Ladies:
Reference is made to the Second Amendment (the "Amendment"), dated as of
October 31, 2003, to the Credit Agreement, dated as of September 29, 2000 (as
amended, restated, supplemented, or otherwise modified, the "Existing Credit
Agreement"; the Existing Credit Agreement, as amended, supplemented, amended and
restated or otherwise modified by the Amendment, the "Credit Agreement"), among
Key Components, LLC, certain Subsidiaries and other equity holders, as
Guarantors, certain financial institutions and other Persons from time to time
parties thereto (collectively, the "Lenders"), Wachovia Bank, National
Association (formerly known as First Union National Bank), as the Administrative
Agent, and the other agents and arrangers party thereto. Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in the Credit Agreement.
By their signature below, the undersigned Obligors hereby acknowledge and
consent to the amendment of the Existing Credit Agreement by, and the terms and
provisions thereof as set forth in, the Amendment. Each undersigned Obligor
hereby reaffirms the covenants and agreements contained in each Loan Document to
which it is a party, including as such covenants and agreements may be modified
by the Amendment, this Affirmation and Consent and the transactions contemplated
thereby. Each undersigned Obligor hereby further certifies that, as of the date
hereof (both before and after giving effect to the effectiveness of the
Amendment), the representations and warranties contained in the Loan Documents
to which the undersigned is a party are true and correct with the same effect as
if made on the date hereof, except to the extent such representations or
warranties expressly relate to a date prior to the date hereof (in which case
such representations and warranties were true and correct as of such earlier
date). Each undersigned Obligor further confirms that each Loan Document to
which it is a party is and shall continue to be in full force and effect and the
same are hereby ratified and confirmed in all respects, except that upon the
effectiveness of the Amendment, all references in such Loan
Documents to the "Credit Agreement" shall mean the Credit Agreement as in effect
and as modified by the Amendment.
IN WITNESS WHEREOF, the undersigned has caused this Affirmation and Consent to
be executed and delivered by its officer hereunto duly authorized as of the date
first above written.
X.X. XXXXXXX MANUFACTURING CO., LLC
XXXXXX LOCK, LLC
ESP LOCK PRODUCTS, LLC
GITS MANUFACTURING COMPANY, LLC
ATLANTIC GUEST, INC.
MARINE INDUSTRIES COMPANY, LLC
XXXXXX ELECTRIC, LLC
KEY COMPONENTS, INC.
ACME ELECTRIC CORPORATION
By /s/ Xxxxx X. XxXxxxx
------------------------------
Name: Xxxxx X XxXxxxx
Title: CFO
GUEST BUILDING, L.L.C.,
by ATLANTIC GUEST, INC., its sole member
By /s/ Xxxxx X. XxXxxxx
------------------------------
Name: Xxxxx X. XxXxxxx
Title: CFO
