EXHIBIT 10.27
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of November 2, 2001, is by and among GLOBAL POWER
EQUIPMENT GROUP INC., a Delaware corporation (the "Borrower"), the financial
institutions party to the Credit Agreement (as defined below) signatory hereto,
in their capacities as lenders (collectively, the "Lenders", and each
individually, a "Lender"), and Bankers Trust Company, as administrative agent
(the "Administrative Agent") for the Lenders.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement dated as of May
23, 2001 (as amended, restated, supplemented or otherwise modified and in effect
from time to time, the "Credit Agreement"), pursuant to which the Lenders have
provided to the Borrower credit facilities and other financial accommodations;
and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders amend the Credit Agreement in certain respects as set forth herein
and the Lenders and the Administrative Agent are agreeable to the same, subject
to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Defined Terms. Terms capitalized herein and not otherwise defined
herein are used with the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, as of the
Effective Date (as defined below), hereby amended by amending and restating
Section 7.2.7(a) in its entirety to read as follows:
"(a) Subject (in the case of Capitalized Lease Liabilities) to
clause (e) of Section 7.2.2, the Borrower will not, and will not permit
any of its Subsidiaries to, make or commit to make Capital Expenditures
other than Capital Expenditures made or committed to be made by the
Borrower and its Subsidiaries (i) in Fiscal Year 2001 which in the
aggregate do not exceed $13,000,000 and (ii) in any succeeding Fiscal
Year which in the aggregate do not exceed $10,000,000:
provided, however, to the extent that Capital Expenditures made by the
Borrower and its Subsidiaries during any Fiscal Year (or portion
thereof) are less than the maximum amount permitted to be made for such
Fiscal Year (or portion thereof),
50% of such unused amount (each such amount, a "carry-forward amount")
may be carried forward to the immediately succeeding Fiscal Year and
utilized to make Capital Expenditures in such succeeding Fiscal Year in
the event the amount permitted in such succeeding Fiscal Year has been
used (it being understood and agreed that no carry-forward amount may
be carried beyond the Fiscal Year immediately succeeding the Fiscal
Year in which it arose and that no portion of the carry-forward amount
available for any Fiscal Year may be used until the entire amount of
Capital Expenditures permitted to be made in such Fiscal Year (without
giving effect to such carry-forward amount) shall be made)."
3. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this Amendment, the Borrower
hereby represents and warrants to the Administrative Agent and the Lenders, in
each case after giving effect to this Amendment, as follows:
(a) The Borrower has the right, power and capacity and has
been duly authorized and empowered by all requisite corporate or limited
liability company and shareholder or member action to enter into, execute,
deliver and perform this Amendment and all agreements, documents and instruments
executed and delivered pursuant to this Amendment.
(b) This Amendment constitutes the Borrower's legal, valid and
binding obligation, enforceable against it, except as enforcement thereof may be
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law or otherwise).
(c) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects at and as of the Effective Date as though made on and as of the
Effective Date (except to the extent specifically made with regard to a
particular date, in which case such representation and warranty is true and
correct in all material respects as of such earlier date).
(d) The Borrower's execution, delivery and performance of this
Amendment do not and will not violate its Articles or Certificate of
Incorporation or By-laws, any material law, rule, regulation, order, writ,
judgment, decree or award applicable to it or any material contractual provision
to which it is a party or to which it or any of its property is subject.
(e) No authorization or approval or other action by, and no
notice to or filing or registration with, any governmental authority or
regulatory body (other than those which have been obtained and are in force and
effect) is required in connection with the execution, delivery and performance
by the Borrower or any other Obligor of this Amendment and all agreements,
documents and instruments executed and delivered pursuant to this Amendment.
(f) No Default or Event of Default exists under the Credit
Agreement as of the date hereof or would exist as of the Effective Date after
giving effect to the amendments and transactions contemplated by this Amendment.
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4. Conditions to Effectiveness of Amendment. This Amendment shall
become effective on the date (the " Effective Date") each of the following
conditions precedent is satisfied:
(a) Execution and Delivery. The Borrower, the Administrative Agent, and
the Required Lenders shall have executed and delivered this Amendment; the
Borrower shall have executed and delivered an Officers Certificate in the form
of Exhibit A attached hereto; the Subsidiary Guarantors shall have executed and
delivered a Reaffirmation of Guarantee in the form of Exhibit B attached hereto.
(b) Representations and Warranties. The representations and warranties
of the Borrower and the other Obligors contained in this Amendment, the Credit
Agreement and the other Loan Documents shall be true and correct in all material
respects as of the Effective Date, with the same effect as though made on such
date, except to the extent that any such representation or warranty relates to
an earlier date, in which case such representation or warranty shall be true and
correct in all material respects as of such earlier date.
(c) No Defaults. No Default or Event of Default under the Credit
Agreement shall have occurred and be continuing.
5. Miscellaneous. The parties hereto hereby further agree as follows:
(a) Costs, Expenses and Taxes. The Borrower hereby agrees to pay all
reasonable fees, costs and expenses of the Administrative Agent incurred in
connection with the negotiation, preparation and execution of this Amendment and
the transactions contemplated hereby, including, without limitation, the
reasonable fees and expenses of Winston & Xxxxxx, counsel to the Administrative
Agent.
(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Amendment to produce more than one (1) such counterpart.
(c) Headings. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
(d) Integration. This Amendment and the Credit Agreement (as amended
hereby) constitute the entire agreement among the parties hereto with respect to
the subject matter hereof.
(e) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE STATE OF
NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES).
(f) Binding Effect. This Amendment shall be binding upon and inure to
the benefit of and be enforceable by the Borrower, the Administrative Agent and
the Lenders and their respective successors and assigns. Except as expressly set
forth to the contrary herein, this
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Amendment shall not be construed so as to confer any right or benefit upon any
Person other than the Borrower, the Administrative Agent and the Lenders and
their respective successors and permitted assigns.
(g) Amendment; Waiver. The parties hereto agree and acknowledge that
nothing contained in this Amendment in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Loan Documents other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any rights, power or remedy of the Lenders or the Administrative Agent
under the Credit Agreement or any other Loan Document, nor constitute a waiver
of any provision of the Credit Agreement or any other Loan Document. No delay on
the part of any Lender or the Administrative Agent in exercising any of their
respective rights, remedies, powers and privileges under the Credit Agreement or
any of the Loan Documents or partial or single exercise thereof, shall
constitute a waiver thereof. On and after the Effective Date each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import, and each reference to the Credit Agreement in the Loan
Documents and all other documents delivered in connection with the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby. The Borrower acknowledges and agrees that this Amendment constitutes a
"Loan Document" for purposes of the Credit Agreement, including, without
limitation, Section 9.1 of the Credit Agreement. None of the terms and
conditions of this Amendment may be changed, waived, modified or varied in any
manner, whatsoever, except in accordance with Section 10.1 of the Credit
Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed and delivered by their respective officers thereunto duly
authorized, as of the date first written above.
GLOBAL POWER EQUIPMENT GROUP INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President of Finance & CFO
GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ XXXX XX XXXXX
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Name: Xxxx Xx Xxxxx
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Title: Assistant Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Director
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By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Assistant Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
NATIONAL CITY BANK, CLEVELAND
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Senior Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FLEET BANK
By: /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
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Title: Assistant Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
US BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
BARCLAYS BANK PLC
By: /s/ XXXX GIANNOUE
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Name: Xxxx Giannoue
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Title: Director
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CITICORP USA, INC.
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
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Title: Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
ALLIED IRISH BANKS PLC
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: Senior Vice President
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FORTIS CAPITAL
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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By: /s/ XXXX X'XXXXXX
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Name: Xxxx X'Xxxxxx
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Title: Managing Director
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GLOBAL POWER EQUIPMENT GROUP INC.
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A
CERTIFICATE OF OFFICER
I, the undersigned, Chief Executive Officer of Global Power Equipment
Group Inc., a Delaware corporation (the "Borrower"), in accordance with Section
4(a) of that certain Third Amendment to Amended and Restated Credit Agreement
dated as of November 2, 2001 (the "Amendment") among the Borrower, Bankers Trust
Company, as Administrative Agent, and the financial institutions party thereto,
do hereby certify on behalf of the Borrower, the following:
1. The representations and warranties set forth in Section 3 of
the Amendment are true and correct in all material respects as
of the date hereof except to the extent such representations
and warranties are expressly made as of a specified date in
which event such representations and warranties were true and
correct in all material respects as of such specified date;
2. No Default or Event of Default has occurred and is continuing;
and
3. The conditions of Section 4 of the Amendment have been fully
satisfied.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings set forth in the Amendment.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered on
behalf of the Borrower this Certificate of Officer on this ___ day of , 2001.
GLOBAL POWER EQUIPMENT GROUP INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President of Finance & CFO
EXHIBIT B
REAFFIRMATION OF GUARANTEE
Each of the undersigned acknowledges receipt of a copy of the Third
Amendment to Amended and Restated Credit Agreement (the "Amendment"; capitalized
terms used herein shall, unless otherwise defined herein, have the meanings
provided in the Amendment) dated as of November 2, 2001, by and among Global
Power Equipment Group Inc., Bankers Trust Company, as administrative agent, and
the financial institutions party thereto as Lenders, consents to such amendment
and each of the transactions referenced in the Amendment and hereby reaffirms
its obligations under the Subsidiary Guaranty, as applicable.
Dated as of November 2, 2001.
DELTAK, L.L.C. XXXXXX CONSTRUCTION SERVICES, INC.
By: /s/ XXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
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Title: Vice President of Finance Title: Treasurer and Secretary
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XXXXXX MANUFACTURING, L.L.C. CFI HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
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Title: Secretary Title: Secretary
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DELTAK CONSTRUCTION SERVICES, INC. CONSOLIDATED FABRICATORS, INC.
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
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Title: Treasurer and Secretary Title: Secretary
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