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EXHIBIT 10.3
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 31, 1999
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED CREDIT AGREEMENT
among Penda Corporation, a Florida corporation (the "Borrower"), the Lenders and
Banque Nationale de Paris, as Agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into
an Amended and Restated Credit Agreement dated as of July 14, 1995 (as amended,
supplemented or otherwise modified through the date hereof, the "Credit
Agreement"). Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to amend
the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 4, hereby amended as follows:
(a) In Section 1.01, the definition of "Applicable Margin" prior
to the phrase "provided, however, that beginning on June 30, 1996" is amended
in full to read as follows:
"'Applicable Margin' means 1.00% per annum for Base Rate
Advances and 2.50% per annum for Eurodollar Rate Advances;"
(b) In Section 1.01, the definition of "Borrowing Base
Availability" is amended in full to read as follows:
"'Borrowing Base Availability' means, from time to time, the
sum of the Loan Values of all Eligible Collateral."
(c) In Section 1.01, the definition of "Eurodollar Rate" is
amended in full to read as follows:
"'Eurodollar Rate' means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Working Capital
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average of the respective rates per annum
(rounded upward to the next whole multiple of 1/16th of 1%) posted by
each of the principal London offices of banks posting rates as
displayed on the Dow Xxxxx Markets screen, page 3750 or such other page
as may replace such page on such service for the purpose of displaying
the London interbank offered rate of major banks for deposits in U.S.
Dollars, at approximately 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for deposits in an amount
substantially equal to BNP's Eurodollar Rate Advance comprising part of
such Working Capital Borrowing to be outstanding during such Interest
Period (or, if BNP shall not have such a Eurodollar Rate Advance,
$1,000,000) and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period."
(d) In Section 1.01, the definition of "Federal Funds Rate" is
amended in full to read as follows:
"'Federal Funds Rate' means, for any period, a fluctuating
interest rate per annum equal for each day during such period (i) to
the rate published by the Dow Xxxxx Markets service on page five of its
daily report as the "ASK" rate as of 10:00 A.M. (New York City time)
for such day (or, if such day is not a
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Business Day, for the immediately preceding Business Day) or (ii) if
the Dow Xxxxx Markets service shall cease to publish or otherwise shall
not publish such rates for any day that is a Business Day, to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it."
(e) In Section 1.01, the definition of "Loan Documents" is
amended by adding at the end thereof the following words:
", in each case as amended, modified or supplemented from time
to time."
(f) In Section 1.01, the definition of "Termination Date" is
amended by deleting the words "March 31, 1999" and inserting in lieu thereof
the words "March 31, 2002".
(g) Section 2.04(b)(y) is amended in full to read as follows:
"(y) Notwithstanding the foregoing, the Working Capital
Facility shall be permanently reduced to the amount set forth in
Schedule I as amended by Section 1(n) to this Amendment."
(h) Section 2.13(d)(i) is amended by deleting the figure "3%" and
inserting in lieu thereof the figure "2.5%".
(i) A new Section 4.01(dd) is inserted as follows:
"Each Loan Party has reviewed the areas within its business
and operations which could be adversely affected by, and has developed
or is in the process of developing a program to address on a timely
basis, "Year 2000 Issues" (i.e., the risk that computer applications
used by such Loan Party may be unable to recognize or perform properly
date sensitive functions involving certain dates prior to, and any date
after, December 31, 1999) and, based on such review, such Loan Party
reasonably believes that the "Year 2000 Issues" (and the cost of
remedying the same) will not have a Material Adverse Effect."
(j) Section 5.03(g) is amended in full to read as follows:
"ERISA Events and ERISA Reports. (i) Promptly and in any event
within 10 days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA Event and
the action, if any, that such Loan Party or such ERISA Affiliate has
taken and proposes to take with respect thereto and (ii) on the date
any records, documents or other information must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy
of such records, documents and information."
(k) Section 5.04(a) is amended in full to read as follows:
"Minimum Net Worth. Maintain on a Consolidated basis for
itself and its Subsidiaries a Net Worth at all times during each Fiscal
Year set forth below the amount set forth below for such periods set
forth below:
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Fiscal Year
Ending On or About Amount
------------------ ------
December 31, 1999 $34,000,000
December 31, 2000 $36,000,000
December 31, 2001 $38,000,000"
(l) Section 5.04(d) is amended in full to read as follows:
"Capital Expenditures. Not make, or permit any of its
Subsidiaries (other than Tri-Glas) to make, any Capital Expenditures
that would cause the aggregate of all Capital Expenditures made by the
Borrower and its Subsidiaries (other than Tri-Glas) on a Consolidated
basis in any Fiscal Year to exceed the amount set forth below for such
Fiscal Year set forth below:
Fiscal Year
Ending In Amount
--------- ------
December 1999 $3,000,000
December 2000 $3,000,000
provided, further, that Tri-Glas may make Capital Expenditures in the
following amounts for the following Fiscal Years:
Fiscal Year
Ending In Amount
--------- ------
December 1999 $500,000
December 2000 $500,000"
(m) A new Section 8.04(e) is inserted as follows:
"Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan
Document, the agreements and obligations of the Borrower
contained in Section 2.08 and this Section 8.04 shall survive
the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan
Documents."
(n) Schedule I to the Credit Agreement is amended in full to read
as set forth in Schedule 1(n) to this Amendment Agreement.
(o) The first full paragraph of Exhibit A is amended by deleting
the words "March 31, 1999" and inserting in lieu thereof the words
"March 31, 2002".
SECTION 2. Conditions of Effectiveness. This Amendment shall
become effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1998.
(b) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(c) The Borrower shall have paid all costs and expenses
required under Section 5 hereof.
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(d) On the Effective Date, the following statements
shall be true and the Agent shall have received a certificate signed
by a duly authorized officer of the Borrower, dated the Effective Date,
stating that:
(i) the representations and warranties contained
in Section 4.01 of the Credit Agreement are correct on and as
of the Effective Date; and
(ii) no Default exists under the Credit Agreement.
(e) The Agent shall have received on or before the Effective
Date, in form and substance satisfactory to the Agent and (except for
the Replacement Notes, as hereinafter defined) in sufficient copies for
each Lender Party:
(i) counterparts of this Amendment executed by the
Borrower and all the Lenders or, as to any of the Lenders,
advice satisfactory to the Agent that such Lender has executed
this Amendment and the consent attached hereto executed by
Tri-Glas;
(ii) a replacement Note or Notes, as appropriate, in
substantially the form of Exhibit A to the Credit Agreement
(as amended pursuant to Section 1(n) of this Amendment) (the
"Replacement Notes") issued to the order of the Lenders;
(iii) a certified copy of the resolution of the Board
of Directors of the Borrower approving this Amendment and the
Replacement Notes and all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Amendment and the Replacement Notes;
(iv) a certified copy of the resolution of the Board
of Directors of Tri-Glas approving the consent attached
hereto, and all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to the
consent;
(v) a certificate of the Secretary of each of the
Borrower and Tri-Glas certifying the names and true signatures
of the officers of such Persons authorized to sign, (1) in the
case of the Borrower, this Amendment and the Replacement Notes
and (2) in the case if Tri-Glas, the consent attached hereto.
(vi) A favorable opinion of Greenberg, Traurig,
Hoffman, Lipoff, Xxxxx & Xxxxxxx, P.A., counsel for the
Borrower and Tri-Glas, as to the due execution, validity and
enforceability of this Amendment, the Loan Documents (as
amended by this Amendment), the Replacement Notes and the
consent attached hereto and as to such other matters as any
Lender through the Agent may reasonably request.
(f) The Agent shall have received the fees referred to
in the separate letter agreement dated March 25, 1999 between the
Borrower and the Agent.
SECTION 3. Representations and Warranties of the Borrower.(a)
The Borrower represents and warrants as follows:
(i) Each of the Borrower and Tri-Glas is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization.
(ii) The execution, delivery and performance by the
Borrower of this Amendment and the Replacement Notes, and by Tri-Glas
of the consent attached hereto and the consummation of the transactions
contemplated hereby, is within its corporate powers, has been duly
authorized by all necessary
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corporate action and does not contravene (1) its charter or by-laws; or
(2) any law or any contractual restriction binding on or affecting it.
(iii) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery,
recordation, filing or performance by the Borrower of this Amendment or
the Replacement Notes and by Tri-Glas of the consent attached hereto.
(iv) This Amendment has been, and each of the Replacement
Notes when delivered will have been, duly executed and delivered by the
Borrower. This Amendment is, and each of the Replacement Notes when
delivered will be, the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their
respective terms.
(v) The consent attached hereto has been duly executed and
delivered by Tri-Glas. The consent attached hereto is the legal, valid
and binding obligations of Tri-Glas, enforceable against Tri-Glas in
accordance with its terms.
(vi) As at the date of this Amendment, none of the
Subsidiaries of the Borrower, other than Tri-Glas, has assets with a
fair market value in excess of $50,000.
(b) The Borrower hereby repeats the representations and warranties
contained in each Loan Document as if made on the date of this Amendment, other
than any such representations or warranties that, by their terms, refer to a
specific date other than the date of this Amendment, in which case as of such
specific date.
SECTION 4. Reference to and Effect on the Loan Documents. (a)
On and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Replacement Notes
and each of the other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, the Collateral Documents and all of
the Collateral described therein do and shall continue to secure the payment of
all Obligations of the Loan Parties under the Loan Documents, in each case as
amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs, Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
PENDA CORPORATION
By s/s Xxxxxx Xxxxxxxx
Title: Vice President
BANQUE NATIONAL DE PARIS,
as Agent and as Lender
By /s/ Xxxxxxx Xxxxxxx
Title :Director
By /s/ Xxxx X. Xxxxxx
Title: Assistant Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By /s/ Xxxxx X. Xxxxx
Title: Vice President
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SCHEDULE 1(N)
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
Working Letter Domestic
Capital of Credit Lending
Name of Bank Commitment Commitment Office
------------ ---------- ---------- ------
Banque Nationale $9,000,000 $500,000 Credit Matters
de Paris, New 000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention:
Xxxxxxx Xxxxxxx
Operations
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention:
Xxxxx Xxxxxxx
Payments
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA No.: 000000000
Account No.: 19225300157
Reference: PENDA
Firstar Bank
Milwaukee, N.A. $3,500,000 Credit Matters
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention:
Xxxxx Xxxxx
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CONSENT
Dated as of March 31, 1999
The undersigned, Tri-Glas Corporation, an Alabama corporation, as
Guarantor under the Subsidiaries Guaranty dated July 15, 1995 (the "Guaranty")
in favor of the Agent, for its benefit and the benefit of the Lenders Parties
party to the Credit Agreement referred to in the foregoing Amendment, hereby
consents to such Amendment and hereby confirms and agrees that (a)
notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of such Amendment,
each reference in the Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by such Amendment, and (b) the Collateral Documents to
which such Grantor is a party and all of the Collateral described therein do,
and shall continue to, secure the payment of all of the Secured Obligations (in
each case, as defined therein).
TRI-GLAS CORPORATION
By /s/ Xxxxxx Xxxxxxxx
Title: Vice President
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