Contract
EXHIBIT 10.31
AMENDMENT NO. 5 AND WAIVER dated as of December [12], 2013 (this “Waiver”), to the CREDIT AGREEMENT dated as of March 22, 2010, as amended pursuant to that certain Amendment No. 1 dated as of June 11, 2010, that certain Incremental Assumption Agreement and Amendment No. 2 dated as of March 11, 2011, that certain Amendment No. 3 dated as of August 2, 2011 and that certain Waiver and Amendment No. 4 dated as of December 3, 2012 (as so amended, the “Credit Agreement”), among ALION SCIENCE AND TECHNOLOGY CORPORATION (the “Borrower”), the Subsidiary Guarantors listed on the signature pages hereto, the lenders from time to time party to the Credit Agreement (the “Lenders”) and CREDIT SUISSE AG, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders have extended, and have agreed to extend, credit to the Borrower.
B. Pursuant to Section 5.04(a) of the Credit Agreement, the audit opinion of the independent public accountants that must accompany the Borrower’s annual audited financial statements shall be without a “going concern” explanatory note or any similar qualification or exception (the “Going Concern Requirement”).
C. The Borrower has informed the Administrative Agent that for the Borrower’s fiscal year ended September 30, 2013, the opinion of the independent public accountants that will accompany the Borrower’s annual audited financial statements may contain an explanatory note with respect to Borrower’s ability to continue to operate as a “going concern”.
D. The Borrower has requested that the Required Lenders waive the Going Concern Requirement for the Borrower’s fiscal year ended September 30, 2013, and agree to amend the Credit Agreement as provided for herein, and the Required Lenders have agreed to such request on and subject to the terms and conditions of this Waiver.
Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby mutually acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms; Interpretation; Etc. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction set forth in Section 1.02 of the Credit Agreement shall apply equally to this Waiver. This Waiver shall be a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 2. Waiver. The Required Lenders hereby waive the Going Concern Requirement with respect to the opinion of the Borrower’s independent public accountants delivered with the audited financial statements for the Borrower’s fiscal year ended September 30, 2013, to the extent (but only to the extent) that such opinion contains an explanatory note expressing doubt or substantial doubt as to the Borrower’s ability to continue as a going concern solely as a result of the impending maturity of the Loans and Commitments.
SECTION 3. Amendments to the Credit Agreement. On the Waiver Effective Date, the Credit Agreement is hereby amended as follows:
(a) Section 6.06(a)(iv) of the Credit Agreement shall be amended by inserting the words “and, with respect only to any repurchase by the Borrower of its Senior Unsecured Notes, the contemplated exchange offer in which the Borrower expects to exchange new notes and new warrants or other securities and cash for all or a portion of its issued and outstanding Senior Unsecured Notes, which exchange offer is expected to close, if it closes at all, in the first quarter of calendar year 2014, has expired, been completed or terminated” after the words “there would be at least $10,000,000 of unused and available Revolving Credit Commitments” and before the period ending the sentence; and
(b) A new Section 6.06(b) of the Credit Agreement shall be added to read in its entirety as follows:
Notwithstanding anything to the contrary set forth herein or in any other Loan Document, no payment (including any sinking fund or similar deposit) shall be made to purchase, redeem, retire, acquire, cancel or terminate any Senior Unsecured Notes if any Revolving Loans are outstanding prior to or after giving effect to such transaction.
(c) Section 6.06(b) of the Credit Agreement shall be re-lettered to be Section 6.06(c) of the Credit Agreement.
SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Waiver, the Borrower represents and warrants to the Administrative Agent and the Required Lenders that, as of the Waiver Effective Date and after giving effect to this Waiver:
(a) This Waiver has been duly authorized, executed and delivered by each Loan Party party hereto, and constitutes a legal, valid and binding obligation of such Loan Party in accordance with its terms. The Credit Agreement constitutes a legal, valid and binding obligation of the Borrower in accordance with its terms.
(b) The representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects on and as of the Waiver Effective Date with the same effect as though made on and as of the Waiver Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects as of such earlier date).
(c) No Default or Event of Default has occurred and is continuing.
SECTION 5. Effectiveness. This Waiver shall become effective on the date (the “Waiver Effective Date”) that the Administrative Agent shall have received counterparts of this Waiver that, when taken together, bear the signatures of (i) the Borrower (ii) each Subsidiary Guarantor and (iii) the Required Lenders.
SECTION 6. Effect of Waiver. Except as expressly set forth herein, this Waiver shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Collateral Agent or the Borrower under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Waiver shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. After the date hereof, any reference to the Credit Agreement shall mean the Credit Agreement, as amended hereby.
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SECTION 7. Consent and Reaffirmation. Each Subsidiary Guarantor hereby consents to this Waiver, and each Loan Party hereby (a) agrees that, notwithstanding the effectiveness of this Waiver, the Guarantee and Collateral Agreement and each of the other Security Documents continue to be in full force and effect, (b) confirms its guarantee of the Obligations (with respect to each Subsidiary Guarantor) and its grant of a security interest in its assets as Collateral therefor, all as provided in the Loan Documents as originally executed and (c) acknowledges that such guarantee and/or grant continue in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents.
SECTION 8. Expenses. The Borrower agrees to reimburse the Administrative Agent for all reasonable out-of-pocket expenses incurred in connection with this Waiver in accordance with the Credit Agreement, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
SECTION 9. Counterparts. This Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same contract. Delivery of an executed counterpart of a signature page of this Waiver by facsimile or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 10. Applicable Law. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. Headings. The headings of this Waiver are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed by their respective authorized officers as of the day and year first above written.
ALION SCIENCE AND TECHNOLOGY CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer and CFO | ||||
ALION-METI CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer | ||||
ALION-CATI CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer | ||||
ALION-JJMA CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer | ||||
ALION-BMH CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer |
[Amendment #5 to the Senior Credit Agreement.]
WASHINGTON CONSULTING, INC., | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer | ||||
ALION-MA&D CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer | ||||
WASHINGTON CONSULTING GOVERNMENT SERVICES, INC., | ||||
By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: Xxxxxxx X. Xxxxxx | ||||
Title: Treasurer | ||||
ALION—IPS CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer | ||||
ALION CANADA (US) CORPORATION, | ||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | ||||
Title: Treasurer |
[Amendment #5 to the Senior Credit Agreement.]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, individually as a Lender and as Administrative Agent, | ||||
By | /s/ Xxxxx Xxxxxxxx | |||
Name: Xxxxx Xxxxxxxx | ||||
Title: Authorized Signatory | ||||
By | /s/ Xxxxxxx Xxxxxxx | |||
Name: Xxxxxxx Xxxxxxx | ||||
Title: Authorized Signatory |
[Amendment #5 to the Senior Credit Agreement.]
GGC UNLEVERED CREDIT OPPORTUNITIES, LLC, as a Lender, | ||||
By | /s/ Xxx Xxxxx | |||
Name: Xxx Xxxxx | ||||
Title: Manager |
[Amendment #5 to the Senior Credit Agreement.]