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Exhibit 10.23
WAIVER AND AMENDMENT TO
SENIOR SUBORDINATED LOAN AGREEMENT
WAIVER AND AMENDMENT, dated as of , 2001 ("Agreement"), in
reference to the SENIOR SUBORDINATED LOAN AGREEMENT, dated as of August 1, 2000
(as thereafter from time to time amended, supplemented, amended and restated, or
otherwise modified, the "Loan Agreement"), among GLOBAL ENERGY EQUIPMENT GROUP,
L.L.C., a Delaware limited liability company (the "Borrower"), and the various
lenders party thereto (the "Lenders").
W I T N E S S E T H:
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WHEREAS, Global Power Equipment Group Inc. (f/k/a GEEG Inc.)
("GPEG"), a wholly-owned subsidiary of the Borrower, intends to conduct an
initial public offering (the "IPO") of its common stock, and has provided the
Lenders with a copy of the registration statement relating to the IPO that was
filed with the Securities and Exchange Commission on April 17, 2001;
WHEREAS, in connection with the IPO, GEEG Acquisition Holdings
Corp., GEEG Holdings L.L.C. ("GHLLC"), GEEG Acquisition Holdings, LLC, GPEG and
the Borrower intend to conduct a series of reorganization transactions more
fully described in Annex 1 (the "Reorganization"); and
WHEREAS, the Required Lenders agree to consent to the waivers to
and amendment of the Loan Agreement as provided herein, subject to the terms and
conditions herein;
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, the Borrower and the
Required Lenders agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the Loan Agreement shall have
such meanings when used in this Agreement.
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ARTICLE II
WAIVER AND AMENDMENT
SECTION 2.1. Waivers. Subject to the conditions and on the terms set
forth herein, and in reliance on the representations and warranties of the
Borrower contained herein, each Lender party hereto consents to the consummation
of the Reorganization and agrees to waive, pursuant to Section 8.4 of the Loan
Agreement, any Default or Event of Default which may occur pursuant to Section
8.1 of the Loan Agreement solely by reason of the consummation thereof,
including, without limitation, any failure of the Borrower to comply with (such
waivers to become effective immediately prior to, and subject to the immediately
subsequent, consummation of the IPO):
(a) Section 3.2(a) or (b) of the Loan Agreement, with respect to
any Change of Control or Asset Sale which may arise solely as a result
of the Reorganization, it being understood that GPEG shall be required
to prepay Loans to the extent, and on the terms, described in the
penultimate sentence of Annex I hereto; provided, however, that no
Change of Control under clause (a) of the definition thereof shall have
occurred and be continuing after the Reorganization;
(b) Section 7.1 of the Loan Agreement, as it would apply to the
merger of the Borrower with and into GHLLC, with GHLLC as the surviving
entity; provided GPEG shall comply with the provisions of Section
7.1(a)(i) and 7.1(b) in respect of the subsequent merger of GHLLC with
and into GPEG, with GPEG as the surviving entity and, thereafter, the
"Borrower" pursuant to the Loan Agreement; provided that Section
7.1(a)(iii) of the Loan Agreement shall not be violated by the
Reorganization;
(c) Section 6.7(a) of the Loan Agreement, to the extent of cash
payments of up to $6.8 million to holders of GHLLC's preferred units
pursuant to the Reorganization; provided that such cash payments shall
count as Restricted Payments under Section 6.7(a)(C) of the Loan
Agreement for purposes of calculating the amount of Restricted Payments
made on or after the Closing Date; and
(d) Section 6.13 of the Loan Agreement, as a result of the
issuance by GPEG of shares of its common stock in exchange for
membership interests in GHLLC pursuant to the Reorganization.
SECTION 2.2. Amendment. Subject to the conditions and on the terms set
forth herein, and in reliance on the representations and warranties of the
Borrower contained herein, clause (vi) of Section 6.10(b) of the Loan Agreement
is restated in its entirety as follows (such
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restatement to become effective immediately prior to, and subject to the
immediately subsequent, consummation of the IPO):
"(vi) so long as no Default has occurred and is continuing, (A) payments
not exceeding, in any fiscal year, $1.25 million to Harvest and its
Affiliates in respect of management and advisory services rendered by
them to the Borrower, so long as such fees accrue ratably throughout the
year and are payable in advance semi-annually beginning on August 1,
2001, (B) a payment of $500,000 to Harvest in connection with the
refinancing of the Senior Credit Facility and (C) payment of $278,711 to
Saw Mill Capital L.L.C. for termination of the management agreement
between Holdings and Saw Mill L.L.C.".
ARTICLE III
CONDITIONS PRECEDENT
This Agreement shall become effective, as of the date hereof,
upon satisfaction of each of the conditions precedent set forth in this Article
III (the first date as of which each such condition has been satisfied being
herein called the "Effective Date").
SECTION 3.1. Counterparts and Lender Consents. Each Lender shall have
been sent counterparts hereof executed on behalf of the Borrower and the
Required Lenders.
SECTION 3.2. Closing Fees, Expenses. The Borrower shall have paid the
reasonable fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx incurred in
connection with this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce each Lender to enter into this Agreement, the
Borrower represents and warrants unto each Lender, as of the date hereof, as set
forth in this Article IV.
SECTION 4.1. Representations and Warranties. The representations and
warranties set forth in Article VI of the Loan Agreement and in each other
Credit Document are, in each case, true and correct in all material respects
with the same effect as if made as of the date hereof (unless stated to relate
to a specified earlier date, in which case such representations and warranties
are true and correct in all material respects as of such earlier date).
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SECTION 4.2. Due Authorization, Non-Contravention, Etc. The execution,
delivery and performance by the Borrower of this Agreement and each other Credit
Document executed or to be executed by it, and the execution, delivery and
performance by each other Obligor of each Credit Document executed or to be
executed by it, and each Obligor's participation in the transactions
contemplated hereby (including each aspect of the Reorganization) are (or, in
the case of the consummation of the Reorganization, will be) within each
Obligor's corporate powers, have been (or, in the case of the consummation of
the Reorganization, will be) duly authorized by all necessary corporate action,
and do not (or, in the case of the consummation of the Reorganization, will be)
(a) contravene (i) the charter or by-laws or similar
organizational documents of any Obligor, (ii) any material contractual
restriction binding on or affecting any Obligor, (iii) any court decree
or order binding on or affecting any Obligor or (iv) any material law or
governmental regulation binding on or affecting any Obligor; or
(b) result in, or require the creation or imposition of, any Lien
on any Obligor's properties (except as permitted by the Senior Credit
Facility).
SECTION 4.3. Government Approval, Regulation, Etc. Other than those
authorizations, approvals or other actions by, and notices to or filings with,
any governmental authority or regulatory body, if any, which have been duly
obtained or made and are in full force and effect, no additional material
authorization or approval or other action by, and no additional notice to or
filing with, any governmental authority or regulatory body or other Person is
required for the due execution, delivery or performance by the Borrower or any
other Obligor of this Agreement, the Loan Agreement or any other Credit Document
to which it is a party.
SECTION 4.4. Validity, Etc. Each of this Agreement and the Loan
Agreement constitutes the valid and legally binding obligations of the Borrower,
enforceable against the Borrower in accordance with its respective terms
(except, in any case, as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by principles of equity); and each Credit Document executed
pursuant hereto by each other Obligor will, on the due execution and delivery
thereof by such Obligor, be the legal, valid and binding obligation of such
Obligor, enforceable in accordance with its terms (except, in any case, as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
principles of equity).
SECTION 4.5. Accuracy of Information. The information that has been
heretofore or is contemporaneously furnished or will be furnished to the Lenders
by or on behalf of any Obligor in connection with this Agreement does not, and
will not, as of the date such information is furnished or certified, contain any
untrue statement of a material fact or omit to state any
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material fact necessary to make the statements therein, in the light of the
circumstances under which they were furnished, not misleading.
SECTION 4.6. Compliance With Loan Agreement. As of the execution and
delivery of this Agreement, each Obligor is in compliance in all material
respects with all the terms and conditions of the Loan Agreement and the other
Credit Documents to be observed or performed by it thereunder, and no Default
has occurred and is continuing.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect. Except as expressly set forth
herein, the terms, provisions and conditions of the Loan Agreement and the other
Credit Documents shall remain in full force and effect and are in all respects
hereby ratified and confirmed. Other than as specifically provided herein, this
Agreement shall not operate as a waiver or amendment of any right, power or
privilege of any Lender under the Loan Agreement or any other Credit Document or
of any other term or condition of the Loan Agreement or any other Credit
Document. The Obligors further acknowledge and agree that the acceptance by the
Lenders of this Agreement shall not be construed in any manner to establish (or
indicate) any course of dealing on any Lender's part, including, without
limitation, the providing of any notice or the requesting of any acknowledgment
not otherwise expressly provided for in any Credit Document with respect to any
future amendment, waiver, supplement or other modification to any Credit
Document or any arrangement contemplated by any Credit Document.
SECTION 5.2. Credit Document Pursuant to Loan Agreement. This Agreement
is a Credit Document executed pursuant to the Loan Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Loan Agreement. Any breach of any representation or warranty
in any material respect, or any breach of any covenant or agreement, contained
in this Agreement shall be deemed to be an Event of Default for all purposes of
the Loan Agreement and the other Credit Documents.
SECTION 5.3. Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provisions hereof.
SECTION 5.4. Execution in Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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SECTION 5.5. Cross-References. References in this Agreement to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Agreement.
SECTION 5.6. GOVERNING LAW; Entire Agreement. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement and the other Credit Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 5.7. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective duly authorized officers as of the day and
year first above written.
GLOBAL ENERGY EQUIPMENT GROUP, L.L.C.,
a Delaware limited liability company
By:
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Name:
Title:
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Name of Lender:
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(please print name)
By:
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Name:
Title:
If second signature necessary:
By:
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Name:
Title:
Amount of Loans:
$
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