Exhibit 10.2(c)
[EXECUTION VERSION]
SECOND AMENDMENT
AND
LIMITED WAIVER
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT AND LIMITED WAIVER TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT, dated as of December 31, 1998 (this "AMENDMENT"), to
the Third Amended and Restated Credit Agreement dated as of October 23, 1998, as
amended by the First Amendment and Limited Waiver, dated as of December 14, 1998
(as the same may be further amended, supplemented, restated or otherwise
modified from time to time, and together with all Annexes, Exhibits and
Schedules thereto, the "CREDIT AGREEMENT") is entered into among Kaynar
Technologies Inc., a Delaware corporation (the "BORROWER"), the other Credit
Parties, the Co-Agent and the Lenders (each as defined in the Credit Agreement)
from time to time party to the Credit Agreement and General Electric Capital
Corporation, a New York corporation, individually and as agent (in such
capacity, "AGENT") for itself and the Lenders. Capitalized terms used and not
otherwise defined herein have the meanings assigned to them in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the other Credit Parties, the Agent, the
Co-Agent and the Lenders have entered into the Credit Agreement; and
WHEREAS, the Borrower and the other Credit Parties have requested
that the Agent, the Co-Agent and the Lenders amend the Credit Agreement to
extend the final date permitted for each of the completion of Year 2000
Corrective Actions, the completion of Year 2000 Implementation Testing, and the
elimination of all Year 2000 Problems;
WHEREAS, the Borrower and the other Credit Parties have requested
that the Agent, the Co-Agent and the Lenders grant limited waivers of the
following sections of the Credit Agreement:
(i) Section 5.18(a) of the Credit Agreement with respect to
delivery by the Marcliff Subsidiaries of duly executed tri-party blocked
account and lock-box agreements in accordance with Annex C to the Credit
Agreement;
(ii) Paragraphs (a) and (b) of Annex C to the Credit Agreement
with respect to the establishment of Lock Boxes and tri-party blocked
account agreements, and Paragraph 1(E) of Annex D to the Credit
Agreement with respect to delivery of evidence relating to Cash
Management Systems, in each case in connection with Borrower
[EXECUTION VERSION]
Accounts at Michigan National Bank, Bank of Xxxxxxx/Xxxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxx, XxxxXxxxxx Bank of Delaware and CoreStates
Bank/Philadelphia; and
(iii) Paragraph 2(G) of Annex D to the Credit Agreement with
respect to delivery by the Marcliff Subsidiaries of a duly executed
landlord waiver and consent with respect to the leased property in
Stoughton, Massachusetts;
WHEREAS, the Agent and the Lenders are willing to enter into such
amendments and waivers on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the above premises, the
Borrower, the other Credit Parties, the Agent, the Co-Agent and the Lenders
agree as follows:
1. AMENDMENTS TO SECTION 5.11(B) THE CREDIT AGREEMENT. Upon the
Effective Date (as defined in SECTION 4 below), Section 5.11(b) of the Credit
Agreement is hereby amended by deleting the date "November 30, 1998" and
substituting in lieu thereof the date "March 31, 1999"; by deleting the date
"January 29, 1999" and substituting in lieu thereof the date "April 30, 1999";
and by deleting the date "March 31, 1999" and substituting in lieu thereof the
date "May 31, 1999".
2. LIMITED WAIVERS. Upon the Effective Date, the Agent, the Co-Agent and
the Lenders hereby grant, subject to the terms and conditions set forth herein,
the following limited waivers:
a. A limited waiver, until March 31, 1999, of the provisions of
Section 5.18(a) of the Credit Agreement with respect to (and only with
respect to) delivery by the Marcliff Subsidiaries of duly executed
tri-party blocked account and lock-box agreements in accordance with
Annex C to the Credit Agreement.
b. A limited waiver, until March 31, 1999, of the provisions of
Paragraphs (a) and (b) of Annex C to the Credit Agreement with respect
to (and only with respect to) the establishment by Borrower of Lock
Boxes and tri-party blocked account agreements, and Paragraph 1(E) of
Annex D to the Credit Agreement with respect to Borrower's delivery of
evidence relating to Cash Management Systems, in each case in connection
with Borrower Accounts at Michigan National Bank, Bank of
Xxxxxxx/Xxxxxxx Xxxxx Xxxxxx, Xxxxx Xxxx, XxxxXxxxxx Bank of Delaware
and CoreStates Bank/Philadelphia.
c. A limited waiver, until March 31, 1999, of the provisions of
Paragraph 2(G) of Annex D to the Credit Agreement with respect to (and
only with respect to) delivery by the Marcliff Subsidiaries of a duly
executed landlord waiver and consent with respect to the leased property
in Stoughton, Massachusetts.
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[EXECUTION VERSION]
3. REPRESENTATIONS AND WARRANTIES. The Credit Parties hereby jointly and
severally represent and warrant to the Agent, the Co-Agent and the Lenders that,
as of the Effective Date and after giving effect to this Amendment:
a. All of the representations and warranties of the Credit
Parties contained in this Amendment, the Credit Agreement and the other
Loan Documents are true and correct in all material respects on and as
of the Effective Date, as if then made (other than representations and
warranties which expressly speak as of a different date, which shall be
true and correct in all material respects as of that date); and
b. Except with respect to provisions of the Credit Agreement
expressly waived herein, no Default or Event of Default has occurred or
is continuing or will result after giving effect to this Amendment.
4. EFFECTIVE DATE. This Amendment shall become effective as of the date
first written above (the "EFFECTIVE DATE") upon the satisfaction of each of the
following conditions:
a. The Agent shall have received each of the following documents,
in each case in form and substance satisfactory to the Agent, prior to
5:00 p.m. (New York time) on February 5, 1999:
i. counterparts hereof executed by the Credit Parties;
ii. a certificate of an officer of each of the Credit
Parties certifying that all conditions precedent to the
effectiveness of this Amendment have been satisfied;
iii. a certificate of the Secretary or Assistant Secretary
of each of the Credit Parties dated the Effective Date certifying
(A) that the By-laws of such Credit Party have not been amended
or otherwise modified since the date of the most recent
certification thereof by the Secretary or Assistant Secretary of
such Credit Party delivered to the Agent and remain in full force
and effect as of the Effective Date, (B) that the Articles or
Certificate of Incorporation of such Credit Party have not been
amended or otherwise modified since the date of the most recent
certification thereof by the Secretary of State of such Credit
Party's jurisdiction of incorporation delivered to the Agent and
remain in full force and effect as of the Effective Date and (C)
that the execution, delivery and performance of this Amendment
have been approved and authorized by all necessary corporate
action; and
iv. such additional documentation as the Agent may
reasonably request;
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[EXECUTION VERSION]
b. No law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Agent shall not have received any
notice that litigation is pending or threatened which is likely to,
enjoin, prohibit or restrain the consummation of the transactions
contemplated by this Amendment, except for such laws, regulations,
orders or decrees, or pending or threatened litigation that in the
aggregate could not reasonably be expected to result in a Material
Adverse Effect;
c. All of the representations and warranties of the Credit
Parties contained in this Amendment, the Credit Agreement and the other
Loan Documents shall be true and correct in all material respects on and
as of the Effective Date, as if then made (other than representations
and warranties which expressly speak as of a different date, which shall
be true and correct in all material respects as of that date);
d. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Amendment shall be satisfactory in all respects in
form and substance to the Agent; and
e. No Default or Event of Default shall have occurred and be
continuing on the Effective Date or will result after giving effect to
this Amendment.
5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
a. Upon the Effective Date, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like
import, and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as
amended and supplemented hereby.
b. Except to the extent specifically set forth herein, the
respective provisions of the Credit Agreement and the other Loan
Documents shall not be amended, modified, waived, impaired or otherwise
affected hereby, and such documents and the Obligations under each of
them are hereby confirmed as being in full force and effect.
c. This Amendment shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment or
waiver of any other term or condition of the Credit Agreement or any
other Loan Document, (ii) prejudice any right or rights which the Agent
or any Lender may now have or may have in the future under or in
connection with the Credit Agreement or any other Loan Document, (iii)
require the Agent or any Lender to agree to a similar transaction on a
future occasion or (iv) create any rights herein to another Person or
other beneficiary or otherwise, except to the extent specifically
provided herein.
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[EXECUTION VERSION]
6. MISCELLANEOUS. This Amendment is a Loan Document. The headings herein
are for convenience of reference only and shall not alter or otherwise affect
the meaning hereof.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE INTERPRETED, AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK.
9. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Amendment.
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[EXECUTION VERSION]
IN WITNESS WHEREOF, the Credit Parties, the Agent, the Co-Agent
and the Lenders have caused this Amendment to be executed by their respective
officers thereunto duly authorized as of the date first above written.
KAYNAR TECHNOLOGIES INC.
M&M MACHINE & TOOL CO.
MARCLIFF CORPORATION
XXXXXX CREATIVE FASTENER, INC.
RECOIL INC.
RECOIL HOLDINGS, INC.
RECOIL HOLDINGS AUSTRALIA, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION, as
Agent, Co-Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Authorized Signatory
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