1
EXHIBIT 10.30.2
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of December 21, 2000 among each of MEDICAL DEVICE MANUFACTURING,
INC., a Colorado corporation (the "Borrower"), MDMI HOLDINGS, INC., a Colorado
corporation (the "Parent Guarantor"), EACH OF THE UNDERSIGNED SUBSIDIARY
GUARANTORS OF THE BORROWER (the "Subsidiary Guarantors" and together with the
Parent Guarantors, the "Guarantors"), BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, in its
capacity as a Lender ("Bank of America") and BANK OF AMERICA, N.A., a national
banking association organized and existing under the laws of the United States,
in its capacity as administrative agent for the Lenders (in such capacity, the
"Agent") and EACH OF THE FINANCIAL INSTITUTIONS SIGNATORY HERETO.
WITNESSETH:
WHEREAS, the Borrower, the Lenders party thereto (the "Lenders") and
the Agent have entered into that certain Credit Agreement dated as of May 31,
2000, as amended on or prior to the date hereof (as from time to time further
amended, supplemented or restated, the "Credit Agreement"), pursuant to which
the Lenders have made and agreed to make certain Loans to, and issue Letters of
Credit for the account of, the Borrower; and
WHEREAS, the Borrower has requested that the Agent and the Lenders
consent to certain amendments to the Credit Agreement, including amendments
relating to (i) the acquisition by the Borrower of all of the outstanding
capital stock of American Technical Moldings, Inc. ("ATM") for an aggregate
purchase price, including fees and expenses, of up to $28,000,000 (the "ATM
Acquisition") with an earnout provision for additional payments in an aggregate
amount of up to $3,000,000 (the "ATM Earnout Payment"); and
WHEREAS, subject to the terms and conditions specified below, the Agent
and the Lenders signatory hereto are willing to consent to the requested
amendments;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. Definitions. Any capitalized term used herein without definition
shall have the meaning set forth in the Credit Agreement.
2. Amendments to the Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 the Credit Agreement is hereby amended by
deleting the definition of "Earnout Payments" therein and inserting in
replacement thereof the following new definition:
2
"Earnout Payments" means the payments to be made to
(i) the Sellers and Eligible Employees, as those terms are
defined in the Share Purchase Agreement dated December 22,
1999 (the "Noble-Met Agreement"), pursuant to the terms of the
Noble-Met Agreement and in an aggregate amount not to exceed
$21,000,000, (ii) the Sellers, as that term is defined in the
Share Purchase Agreement dated May 31, 2000 (the "UTI
Agreement"), pursuant to the terms of the UTI Agreement and in
an aggregate amount not to exceed $10,000,000, (iii) the
Sellers, as that term is defined in the Agreement and Plan of
Merger, dated May 12, 2000 (the "MER Agreement"), pursuant to
the terms of the First Deferred Cash Payment and the Second
Deferred Cash Payment as those terms are defined in the MER
Agreement and the noncompete payment pursuant to the
Noncompetition Agreement among MDMI, Medical Engineering
Resources, Ltd. and Xxxxxx Xxxxxxx, and in an aggregate amount
not to exceed $450,000 and (iii) American Technical Moldings,
Inc. ("ATM") in an aggregate amount not to exceed $3,000,000
pursuant to the terms of that certain Agreement and Plan of
Merger dated December 21, 2000 by and among the Borrower,
KMKATM Acquisition Corp., ATM and certain shareholders of ATM.
(b) The last numbered section of Article V of the Credit
Agreement is deleted in its entirety and the following new Section 5.5
is inserted in replacement thereof:
5.5 Lease Assignments. Without limiting the
generality of Section 5.1, the Borrower, as security for all
Obligations, and each Domestic Subsidiary, as security for the
Guarantors' obligations, as applicable, shall deliver to the
Agent (i) on the Closing Date, with respect to each material
leased facility of the Borrower or a Domestic Subsidiary, a
Lease Assignment, and (ii) thereafter, with respect to each
material leased facility of the Borrower or a Domestic
Subsidiary, unless otherwise determined by the Required
Lenders, a Lease Assignment with respect to such facility
together with such lessor estoppel, waiver and consent
certificates as the Lenders may reasonably request.
(c) Section 9.19 of the Credit Agreement is hereby amended by
deleting the words "Simultaneously with" in the first line thereof and
inserting in replacement thereof the words "Within thirty (30) days
of".
(d) Section 10.1(c) of the Credit Agreement is hereby deleted
and the following new clause (c) is inserted in replacement thereof:
2
3
(c) Consolidated EBITDA. Permit as at the end of any
Four-Quarter Period during the respective periods set forth
below Consolidated EBITDA as of the end of any Four-Quarter
Period to be less than that set forth opposite each such
period:
Period Consolidated EBITDA Must Exceed
------ -------------------------------
Closing Date through
December 30, 2001 $26,000,000
December 31, 2001 through
December 30, 2002 $28,500,000
December 31, 2002 through
December 30, 2003 $33,000,000
December 31, 2003 through
December 30, 2004 $35,000,000
December 31, 2004
and thereafter $38,000,000
(e) Section 10.2(v) of the Credit Agreement is hereby amended
by deleting the dollar figure $10,000,000 in the last line thereof and
inserting in replacement thereof the words "$28,000,000 in Fiscal Year
2000 and $10,000,000 in any Fiscal Year thereafter."
(f) Section 10.3 of the Credit Agreement is hereby amended by
inserting after the words "make Capital Expenditures" in the first line
thereof the words "(other than Capital Expenditures incurred in
connection with Acquisitions permitted hereunder)".
(g) Section 10.5(i) of the Credit Agreement is hereby amended
by deleting the words "for Borrowed Money" in the first line thereof.
3. Consents. The Agent and the Lenders party hereto, by execution of
this Amendment below, consent to the consummation of the ATM Acquisition. This
consent shall cease to apply if the ATM Acquisition is not consummated within
ninety (90) days of the date hereof.
4. Conditions to Effectiveness. This Amendment shall become effective
only upon the receipt by the Agent of the following, in form and substance
satisfactory to the Agent:
3
4
(a) Four executed counterparts of this Amendment executed by
the Borrower and the Required Lenders;
(b) each of the documents relating to the ATM Acquisition
required under Section 10.2(ii)(A) and (B) of the Credit Agreement;
(c) copies of all additional agreements, instruments and
documents which the Lenders may reasonably request, such documents,
when appropriate, to be certified by appropriate governmental
authorities.
5. Representations and Warranties. In order to induce the Agent and the
Lenders to enter into this Amendment, the Borrower represent and warrant to the
Agent and the Lenders as follows:
(a) The representations and warranties made by the Borrower or
Guarantor in Article VIII of the Credit Agreement and in each of the
other Loan Documents to which it is a party after giving effect to the
transactions contemplated by Amendment Documents are true and correct
in all material respects on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to an
earlier date (in which case they continue to be true as of such earlier
date);
4
5
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, since the date of the most recent
financial reports of the Borrower received by each Agent and the
Lenders under Section 9.1 of the Credit Agreement;
(c) The Borrower has, and will have after the consummation of
the ATM Acquisition, at least $7,325,000 available to be advanced as
Revolving Loans under the Revolving Credit Facility;
(d) The execution, delivery and performance by the Borrower of
this Amendment are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i)
its charter or by-laws, (ii) any applicable laws or (iii) any legal or
contractual restriction binding on or affecting the Borrower or any
Subsidiary; and such execution, delivery and performance do not or will
not result in or require the creation of any Lien upon or with respect
to any of its properties.
(e) This Amendment constitutes the legal, valid and binding
obligation of the Borrower and each Guarantor, enforceable against the
Borrower and each Guarantor in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency
fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforceability of creditor's rights generally or by
equitable principles of general application (whether considered in an
action at law or in equity).
(f) No governmental approval is required for the due
execution, delivery and performance by the Borrower of this Amendment,
except for such governmental approvals as have been duly obtained or
made and which are in full force and effect on the date hereof and not
subject to appeal.
(g) There are no pending or threatened actions, suits or
proceedings affecting the Borrower or any of its Subsidiaries or the
properties of the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, that may, if adversely determined,
materially adversely affect the financial condition, properties,
business, operations or prospects of the Borrower and it Subsidiaries,
considered as a whole, or affect the legality, validity or
enforceability of this Amendment or any other Loan Document.
(h) No Default or Event of Default has occurred and is
continuing.
6. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects by each party hereto
and shall be and remain in full force and effect according to their respective
terms.
5
6
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
8. Governing Law. This Amendment shall in all respects be governed by,
and construed in accordance with, the laws of the state of New York.
9. Enforceability. Should any one or more of the provisions of this
Amendment be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
10. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement as amended hereby.
11. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the Borrower, the Guarantors, the Lenders, the Agent and
their respective successors, assigns and legal representatives; provided,
however, that the Borrower and the Guarantors, without the prior consent of the
Lenders, may not assign any rights, powers, duties or obligations hereunder.
12. Consent of Guarantors. Each of the Guarantors joins in the
execution of this Amendment for the purposes of consenting to the amendments to
the Credit Agreement contained herein and for the further purpose of confirming
its guaranty of all Borrower's Liabilities (as defined in the Facility
Guaranties).
[SIGNATURE PAGES FOLLOW.]
6
7
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
BORROWER:
MEDICAL DEVICE MANUFACTURING, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
GUARANTORS:
MDMI HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
G&D, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
MEDICAL ENGINEERING RESOURCES, LTD.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
NOBLE-MET, LTD.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
8
UTI CORPORATION
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
SPECTRUM MANUFACTURING, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
AGENT:
BANK OF AMERICA, N.A., as Agent
By: /s/ XXXXX-XXXX XXXXXXXXX
--------------------------------
Name: Xxxxx-Xxxx Xxxxxxxxx
------------------------------
Title: Vice President
-----------------------------
9
LENDERS:
Antares Capital Corporation
-----------------------------------
[Name of financial institution]
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
------------------------------
Title: Managing Director
-----------------------------
SUNTRUST BANK
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By: /s/ XXX X. XXXXX
--------------------------------
Name: Xxx X. Xxxxx
------------------------------
Title: Senior Vice President
-----------------------------
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx X. Xxxx
------------------------------
Title: Vice President
-----------------------------
LaSalle Bank National Association
-----------------------------------
[Name of financial institution]
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: Corporate Banking Officer
-----------------------------
BANK OF AMERICA, N.A.
-----------------------------------
[Name of financial institution]
By: /s/ XXXXX-XXXX XXXXXXXXX
--------------------------------
Name: Xxxxx-Xxxx Xxxxxxxxx
------------------------------
Title: Vice President
-----------------------------
-----------------------------------
Fleet National Bank
By: /s/ XXXXXXX X. X'XXXXXXXX
--------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
------------------------------
Title: Vice President
-----------------------------
