Exhibit 10.2
AMENDMENT NO. 2
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT, dated as of August 11, 2006 (this "Amendment"), is entered into by
and among WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as agent for
Lenders (in such capacity, "Agent") and as a Lender, THE CIT GROUP BUSINESS
CREDIT, INC., as a Lender, FEDDERS NORTH AMERICA, INC., a Delaware
corporation, and the other Borrowers party to the Loan Agreement referred to
below, FEDDERS CORPORATION, a Delaware corporation, and the other Guarantors
party to the Loan Agreement.
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors are party to that
certain Amended and Restated Loan and Security Agreement, dated as of January
31, 2006, as amended by Amendment No. 1 to Loan and Security Agreement, dated
as of February 15, 2006 (the "Loan Agreement"); and
WHEREAS, Borrowers and Guarantors have requested that Agent and
Lenders agree to make a short-term supplemental term loan to Borrowers in the
amount of $3,000,000; and Agent and Lenders are willing to agree to the
foregoing, on and subject to the terms and conditions set forth in this
Amendment;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and covenants set forth herein and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, it is hereby agreed as follows:
1. Definitions. All capitalized terms used and not otherwise defined
herein shall have their respective meanings as set forth in the Loan
Agreement.
2. Additional Definitions. Section 1 of the Loan Agreement is hereby
amended to include, in addition and not in limitation, the following defined
terms:
"Amendment No. 2" shall mean Amendment No. 2 to
Loan and Security Agreement, dated as of August 11, 2006,
executed among Agent, Required Lenders, Borrowers and
Guarantors."
"Amendment No. 2 Effective Date" shall mean the
date on which all conditions precedent to the effectiveness
of Amendment No. 2 have been fully satisfied, as determined
by Agent."
"`Supplemental Term Loan" shall mean the
supplemental term loan in the principal amount of $3,000,000
made by Agent and Lenders to Borrowers pursuant to, and on
the terms and conditions set forth in, Amendment No. 2."
3. Amendment to Existing Definitions. The definition of Term Loans
set forth in Section 1.134 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"1.134 "Term Loans" shall mean, collectively, (a)
the Outstanding Addison Term Loan, (b) the Trademark Term
Loans, (c) the Rotorex Real Property Term Loan and (d) the
Supplemental Term Loan; sometimes being referred to herein
individually as a "Term Loan"."
4. Supplemental Term Loan.
(a) In addition to, and not in limitation of, the existing Term
Loans outstanding immediately prior to the Amendment No. 2 Effective Date and
the Revolving Loans which have been previously made, and may hereafter be made
(subject to the terms of the Loan Agreement) by Agent and Lenders to
Borrowers, at Borrowers' and Guarantors' request, as a one-time accommodation
to Borrowers, Agent and Lenders have agreed to make the Supplemental Term Loan
to Borrowers on the Amendment No. 2 Effective Date. The Supplemental Term Loan
shall constitute one of the Term Loans, shall be secured by all of the
Collateral and shall be made within the limits of the Maximum Credit. The
proceeds of the Supplemental Term Loan shall be used by Borrowers, and Agent
shall accordingly apply all of such proceeds, solely to repay to Agent, for
the benefit of Lenders, then outstanding Revolving Loans.
(b) Borrowers shall pay interest to Agent, for the benefit of
Lenders, on the outstanding principal amount of the Supplemental Term Loan at
an annual interest rate equal to the Prime Rate plus two and one-half percent
(2.5%) and otherwise in accordance with Section 3.1 of the Loan Agreement.
Notwithstanding anything to the contrary set forth in the Loan Agreement, the
Supplemental Term Loan shall at all times constitute a Prime Rate Loan and
Borrowers shall have no right to elect to convert the Supplemental Term Loan,
or any portion thereof, to a Eurodollar Rate Loan.
(c) Unless earlier demanded in accordance with the terms of the
Loan Agreement, the outstanding principal balance of the Supplemental Term
Loan shall be due and payable in full to Agent, for the benefit of Lenders,
without notice or demand, on August 31, 2006. In addition to, and not in
limitation of, all other Events of Default set forth in Section 10 of the Loan
Agreement, failure of Borrowers to pay the Supplemental Term Loan in full to
Agent on or before August 31, 2006 shall constitute an additional Event of
Default under the Loan Agreement.
5. Conditions Precedent. The effectiveness of the Amendments made in
this Amendment is subject to the satisfaction of each of the following
conditions precedent:
(a) Agent shall have received an executed copy (or executed faxed
or electronic copy) of this Amendment duly authorized, executed and delivered
by the parties hereto other than Agent; and
(b) as of the date of this Amendment, no Default or Event of
Default shall have occurred and be continuing.
6. Amendment Fee. In consideration of the agreements of Agent and
Lenders and the amendments to the Loan Agreement set forth in this Amendment,
Borrowers shall pay to Agent, for the account of Lenders, a fee in the amount
of $30,000, which fee is fully earned and payable by Borrowers to Agent as of
the date hereof and may, at Agent's sole option, be charged by Agent to any
account of Borrowers maintained by Agent.
7. Further Assurances. Borrowers and Guarantors shall execute and
deliver such additional documents and take such additional actions as may be
reasonably requested by Agent to effectuate the provisions and purposes of
this Amendment.
8. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in
accordance with the internal laws of the State of New York (without giving
effect to principles of conflicts of laws).
9. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
10. Counterparts. This Amendment may be executed in any number of
counterparts, all of which counterparts shall together constitute one and the
same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart hereof signed by each of
the parties hereto.
11. Inconsistencies. To the extent that any provision of the Loan
Agreement or any Financing Agreement is inconsistent with the provisions of
this Amendment, such other provision shall be deemed to be amended so that it
is made consistent with the provisions of this Amendment. Except as expressly
agreed herein, the Loan Agreement and all of the other Financing Agreements
and all covenants, representations and warranties contained therein, are
hereby ratified and confirmed in all respects and shall remain in full force
and effect in accordance with their terms.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
AGENT: BORROWERS:
----- ---------
WACHOVIA BANK, NATIONAL FEDDERS NORTH AMERICA, INC.
ASSOCIATION, as Agent and Issuing Bank
By: /s/ Xxxx Xxxxxxxxxx, Xx. By:/s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------ ------------------------
Title: Vice President Title: Executive Vice President
LENDERS:
--------
WACHOVIA BANK, NATIONAL ASSOCIATION XXXXXXX QUIET KOOL CORPORATION
By: /s/ Xxxx Xxxxxxxxxx, Xx. By:/s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------ ------------------------
Title: Vice President Title: Executive Vice President
THE CIT GROUP BUSINESS CREDIT, INC. COLUMBIA SPECIALTIES, INC.
By: /s/ G. Xxxxx XxXxxxxx By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------ ------------------------
Title: Vice President Title: Executive Vice President
TRION, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
ENVIRCO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
XXXXXX COIL COMPANY
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
FEDDERS ADDISON COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
FEDDERS ISLANDAIRE, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
ISLAND METAL FABRICATING, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
GUARANTORS:
-----------
FEDDERS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
FEDDERS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
FEDDERS INVESTMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
FEDDERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
ROTOREX COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------
Title: Executive Vice President
HERRMIDIFIER COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx Xx.
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Title: Executive Vice President
