EXHIBIT 10.2
AMENDMENT NO. 1
TO CREDIT AGREEMENT
AGREEMENT, dated as of May 6, 1997, among HCC INDUSTRIES INC., a
Delaware corporation (the "Borrower"), the lending institutions listed on the
signature pages hereof (collectively, the "Lenders") and FLEET CAPITAL
CORPORATION, as Agent (the "Agent").
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement, dated as of February 14, 1997, pursuant to which the
Lenders have made two term loans to the Borrower in an aggregate principal
amount of $60,000,000 and have agreed, subject to certain terms and conditions,
to make revolving advances to the Borrower and to issue or to cause the issuance
of letters of credit for the account of the Borrower (such agreement being
referred to herein as the "Credit Agreement");
WHEREAS, in connection with the contemplated issuance by the Borrower
of certain senior subordinated notes and the contemplated repayment in full of
the aforesaid term loans with a portion of the proceeds of such issuance, the
Borrower has requested that certain changes be made to the provisions contained
in the Credit Agreement, and the Lenders and the Agent are agreeable to making
such changes, subject to the terms and conditions herein contained.
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree
as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement
shall be, and upon the fulfillment of the conditions set forth in Section 4
hereof is, amended as follows:
2.1 The phrase "Revolving Facility in an aggregate principal amount
not to exceed $10,000,000" in the second WHEREAS clause of the Credit Agreement
is deleted and the phrase "Revolving Facility in an aggregate principal amount
not to exceed $20,000,000" shall be substituted therefor.
2.2 The phrase "1-1/4% in excess of the Base Rate as in effect from
time to time" in Section 2.04(a) of the Credit Agreement is deleted and the
phrase "equal to the Base Rate as in effect from time to time plus the Borrowing
Base Utilization Fee Rate, if any, in effect from time to time" shall be
substituted therefor.
2.3 Section 3.01 of the Credit Agreement is amended by (i)
deleting the phrase "at a rate for each day equal to 1/2 of 1% per annum
on the daily average of such Lender's Unutilized Revolving Commitment" in
subsection (a) thereof and substituting therefor the phrase "at a rate for each
day equal to 1/4 of 1% per annum on the daily average of such Lender's
Unutilized Revolving Commitment (provided that until the first time that the sum
of the aggregate outstanding principal balance of the Revolving Loans and
Swingline Loans and the Letter of Credit Outstandings shall exceed $15,000,000
(but not thereafter), for purposes of this Section 3.01(a) only, each Lender's
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Unutilized Revolving Commitment shall be calculated as if such Lender's
Revolving Commitment under clause (i) of the definition of Unutilized Revolving
Commitment were the lesser of (x) such Lender's Revolving Commitment and (y)
such Lender's Revolving Percentage of $15,000,000)", (ii) adding the phrase
"plus the Borrowing Base Utilization Fee Rate, if any, then in effect" after the
first usage of the phrase "Applicable Eurodollar Margin then in effect with
respect to Revolving Loans" in subsection (b) thereof and after the phrase
"(regardless of the fact that the Borrower may not be able to request Eurodollar
Loans)" in such subsection (b), (iii) adding the phrase "(provided that
notwithstanding this subsection (e)(ii) or the Fee Letters, no agency fee shall
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be payable on the first or any subsequent anniversary of the Effective Date)" at
the end of subsection (e) thereof immediately before the period and (iv) adding
the following subsection (g) thereto:
"(g) The Borrower agrees to pay to the Agent, for the account of
each Non-Defaulting Lender pro rata on the basis of their respective
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Adjusted Revolving Commitment Percentages, a utilization fee
("Utilization Fee") for the period from and including May 6, 1997 to,
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but not including, the date the Total Revolving Commitment has been
terminated, computed at a rate for each day equal to 1/4 of 1% per
annum on the amount, if any, by which (x) the sum of the aggregate
outstanding principal balance of the Revolving Loans and Swingline
Loans plus the Letter of Credit Outstandings on such day exceeds (y)
$10,000,000. Such Utilization Fee shall be due and payable in arrears
on the first calendar day of each April, July, October and January and
on the date upon which the Total Revolving Commitment is terminated."
2.4 Section 4.02(A) of the Credit Agreement is amended by (i)
deleting the text of subsections (d), (e) and (f) thereof and substituting the
phrase "[Intentionally Omitted]" therefor and (ii) deleting the text of
subsection (c) thereof and substituting the following therefor:
"Notwithstanding anything contained in this Section 4.02(A) or any
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other provision of this Agreement to the contrary, the Borrower shall
make mandatory prepayments of principal on the Revolving Loans with
respect to Asset Sales and/or reinvest the proceeds of such Asset
Sales in accordance with the terms of the Senior Subordinated Debt
Agreement, in either instance, within such time periods and in such
amounts so that the Borrower shall not, with respect to any one or
more Asset Sales, have any obligation under the Senior Subordinated
Debt Agreement to make an offer to purchase any Senior Subordinated
Debt. Any prepayments of the Revolving Loans
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pursuant to the immediately preceding sentence shall on the date of
such prepayment permanently reduce the Total Revolving Commitment in
an amount equal to such prepayment (with the Revolving Commitment of
each Lender being permanently reduced on the date of such prepayment
by such Lender's Revolving Percentage of such permanent reduction in
the Total Revolving Commitment)."
2.5 The remaining portion of Section 7.01(a) of the Credit Agreement
commencing with the phrase ",together with a certificate..." is deleted.
2.6 The phrase ", subject to Section 8.05," in Section 7.08 of the
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Credit Agreement is deleted.
2.7 The text of each of subsections (a), (b), (c) and (f) of Section
7.11 of the Credit Agreement is deleted and the phrase "[Intentionally Omitted]"
shall be substituted therefor.
2.8 Section 7.12 of the Credit Agreement is deleted and "7.12
[Intentionally Omitted]," shall be substituted therefor.
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2.9 The phrase "permitted to be incurred by Section 8.05" in Section
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8.02(b) of the Credit Agreement is deleted and the phrase "not prohibited to be
incurred hereunder" shall be substituted therefor.
2.10 Section 8.04 of the Credit Agreement is amended by (i) deleting
from clause (c) thereof the phrase ",in each case only if, after giving effect
to the incurrence thereof, the limit on Consolidated Capital Expenditures set
forth in Section 8.05 would not be breached", (ii) deleting the word "and" at
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the end of clause (f) thereof, (iii) relettering clause (g) thereof as clause
(h) and (iv) adding the following clause (g) after clause (f) thereof:
"(g) the Senior Subordinated Debt and the subordinated
guarantees of the Senior Subordinated Debt by the Subsidiary
Guarantors, the terms and provisions (including, without limitation,
as to subordination) of all of which shall be acceptable to the Agent
and the Lenders and the proceeds of which Senior Subordinated Debt
shall be used, in part, to pay in full the Subordinated Debt, the Term
Loans and all other Obligations then outstanding (other than
contingent reimbursement obligations with respect to the undrawn
amount of then outstanding Letters of Credit); and"
2.11 Section 8.07 of the Credit Agreement is amended by (i) adding the
phrase ",defease" immediately after the phrase "or acquire" in subsection (b)
thereof and (ii) adding the phrase ", except that the Borrower may prepay in
full the Subordinated Debt with proceeds of the Senior Subordinated Debt" to the
end of such subsection 8.07(b).
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2.12 The phrase "and the Borrower shall be permitted to redeem shares
of common stock of the Borrower and contingent antidilution warrants of the
Borrower, in each instance, which were issued in connection with the issuance of
the Subordinated Debt (such stock and warrants representing approximately 6% of
the common equity of the Borrower on a fully diluted basis) for an aggregate
price, together with the amount of principal of the Subordinated Debt all of
which is to be prepaid at the time of such redemption, of $22,500,000 with
proceeds of the Senior Subordinated Debt" shall be added to Section 8.08(a)(iv)
of the Credit Agreement after the word "Sellers".
2.13 Section 8.10 of the Credit Agreement is deleted and the following
Section 8.10 shall be substituted therefor:
"8.10 Fixed Charge Ratio. If on the last day of any Test Period
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the remainder of (x) the lesser of the Total Revolving Commitment or
the Borrowing Base minus (y) the sum of Revolving Loans, Swingline
Loans and Letter of Credit Outstandings shall be less than $7,500,000,
the Borrower will not permit the ratio of (x) Consolidated EBITDA for
such Test Period minus the sum of Consolidated Capital Expenditures
for such Test Period plus Consolidated Cash Taxes for such Test Period
to (y) Consolidated Debt Payments for such Test Period (excluding
payments on the Loans and any payments on the Subordinated Debt) to be
less than 1.0 to 1.0."
2.14 Sections 8.05, 8.11, 8.12 and 8.13 of the Credit Agreement are
deleted and the following shall be substituted therefor:
"8.05 [Intentionally Omitted].
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8.11 [Intentionally Omitted].
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8.12 [Intentionally Omitted].
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8.13 [Intentionally Omitted]."
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2.15 Section 9 of the Credit Agreement is amended by (i) adding the
word "or" immediately after the semicolon at the end of subsection 9.10 thereof
and (ii) adding a subsection 9.11 thereto which reads as: "9.11 Designated
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Senior Indebtedness. If any indebtedness or obligations of the Borrower or any
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of its Subsidiaries (other than the Obligations) shall be or become "Designated
Senior Indebtedness" (as such term is defined in the Senior Subordinated Debt
Agreement);".
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2.16 The definitions of "Applicable Base Rate Margin" and "Applicable
Eurodollar Margin" in Section 10 are deleted and the following shall be
substituted therefor:
'"Applicable Base Rate Margin" shall mean, for any day, 0%.
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"Applicable Eurodollar Margin" shall mean, for any day, 1.50%.'
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2.17 (A) The first sentence of the definition of "Borrowing Base" in
Section 10 of the Credit Agreement is deleted and the following shall be
substituted therefor:
'"Borrowing Base" shall mean, as of any date of determination,
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the sum of (i) 85% of the book value of all Eligible Accounts of the
Borrower and the Subsidiary Guarantors plus (ii) 60% of the value
(determined at the lower of cost (calculated on a first in, first out
basis) or market) of all Eligible Inventory of the Borrower and the
Subsidiary Guarantors plus (iii) $8,000,000; provided that if for any
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Test Period Borrowing Base Excess Cashflow shall be less than
$2,500,000 (as determined by the Agent based upon the financial
statements of the Borrower required to be delivered to the Lenders
pursuant to Sections 7.01(a) and (b) hereof), then on the first day of
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the calendar month immediately after the month in which the Agent
determined same and additionally on the last day of each fiscal
quarter of the Borrower after such Test Period (until the first day of
the calendar month immediately after the month in which the Agent has
determined, based upon the aforesaid financial statements of the
Borrower, that the same is no longer true for a subsequent Test
Period), the amount then in effect in clause (iii) above shall be
reduced by $285,714.29.'
(B) A new sentence is added to the end of the definition of "Borrowing
Base" in Section 10 of the Credit Agreement and reads as follows:
"Clause (iii) of the first sentence of the Borrowing Base shall be
zero at any time when a Default (to the extent arising from a failure
of the Borrower to deliver any financial statements under Section
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7.01(a) or (b)) has occurred and is continuing for five or more days
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following the date delivery thereof is required under such Sections."
2.18 The definitions of "Borrowing Base Excess Cashflow" and
"Borrowing Base Utilization Fee Rate" are added to Section 10 of the Credit
Agreement in the correct alphabetical order and read as follows:
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'"Borrowing Base Excess Cashflow" shall mean for any Test Period
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that amount which is (a) Consolidated EBITDA for such period less (b)
the sum of (i) Consolidated Cash Interest Expense for such period,
(ii) income tax expense of the Borrower and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP plus
(iii) Consolidated Capital Expenditures for such period (except to the
extent financed through the incurrence of Indebtedness).
"Borrowing Base Utilization Fee Rate" shall mean, for any day on
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which (x) the sum of the aggregate outstanding principal balance of
the Revolving Loans and Swingline Loans plus the Letter of Credit
Outstandings exceeds (y) $10,000,000, one-quarter of one percent
(1/4%).'
2.19 The definition of "Change of Control" in Section 10 of the Credit
Agreement is deleted and the following shall be substituted therefor:
'"Change of Control" shall mean the occurrence of any of the
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following events:
(i) prior to the first public offering of common stock of the
Borrower, the Permitted Holders (as defined below) cease to be the
"beneficial owners" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act (as defined below)), directly or indirectly, of a
majority in the aggregate of the total voting power of the Voting
Stock (as defined below) of the Borrower, whether as a result of
issuance of securities of the Borrower, any merger, consolidation,
liquidation or dissolution of the Borrower, any direct or indirect
transfer of securities or otherwise (for purposes of this clause (i)
and clause (ii) below, the Permitted Holders shall be deemed to
beneficially own any Voting Stock of a corporation (the "specified
corporation") held by any other corporation (the "parent corporation")
so long as the Permitted Holders beneficially own (as so defined),
directly or indirectly, in the aggregate a majority of the voting
power of the Voting Stock of the parent corporation);
(ii) (A) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in clause (i) above
except that a person shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after
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the passage of time), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of the Borrower; and (B) the
Permitted Holders "beneficially own" (as defined in clause (i) above),
directly or indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Borrower than such other
person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the
Board of Directors (as defined below) of the Borrower (for the
purposes of this clause (ii), such other person shall be deemed to
beneficially own any Voting Stock of a specified corporation held by a
parent corporation, if such other person "beneficially owns" (as
defined in this clause (ii)), directly or indirectly, more than 30% of
the voting power of the Voting Stock of such parent corporation and
the Permitted Holders "beneficially own" (as defined in clause (i)
above), directly or indirectly, in the aggregate a lesser percentage
of the voting power of the Voting Stock of such parent corporation and
do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board
of Directors of such parent corporation);
(iii) (A) another corporation merges into the Borrower or the
Borrower consolidates with or merges into any other corporation, or
(B) the Borrower conveys, transfers or leases all or substantially all
its assets (computed on a consolidated basis) to any person or group,
in one transaction or a series of transaction other than any
conveyance, transfer or lease between the Borrower and a Wholly Owned
Subsidiary (as defined below) of the Borrower, in each case in one
transaction or a series of related transactions with the effect that
either (x) immediately after such transaction any person or entity or
group (as so defined) of persons or entities (other than a Permitted
Holder) shall have become the beneficial owner of securities of the
surviving corporation of such merger or consolidation representing a
majority of the combined voting power of the outstanding securities of
the surviving corporation ordinarily having the right to vote in the
election of directors or (y) the securities of the Borrower that are
outstanding immediately prior to such transaction and which represent
100% of the combined voting power of the securities of the Borrower
ordinarily having the right to vote in the election of directors are
changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of
the surviving corporation that represent immediately
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after such transaction, at least a majority of the combined voting
power of the securities of the surviving corporation ordinarily having
the right vote in the election of directors; or
(iv) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of
the Borrower (together with any new directors whose election by such
Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of 60% of the
directors of the Borrower then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Borrower then in office.
For purposes of this definition of "Change of Control" and the
definitions used within this definition (and only for such purposes), the
following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean (i) any other
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Person which, directly or indirectly, is in control of, is controlled
by or is under common control with such specified Person or (ii) any
other Person who is a director or officer (A) of such specified
Person, (B) of any subsidiary of such specified Person or (C) of any
Person described in clause (i) above. For purposes of this
definition, control of a Person means the power, direct or indirect,
to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" shall mean the Board of Directors of the
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Borrower or any committee thereof duly authorized to act on behalf of
such Board.
"Capital Stock" of any Person shall mean any and all shares,
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interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated), including
any Preferred Stock, but excluding any debt securities convertible
into or exchangeable for such equity.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, or any successor statute or statutes thereto.
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"Permitted Holders" shall mean Xxxxxx Xxxxxxxx, Windward Capital
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Associates, L.P., Windward/Park HCC, L.L.C., Windward/Merchant, L.P.,
Windward/Merban, L.P. or any of their respective members or partners
or any Affiliate of any of the foregoing.
"Person" shall mean any individual, corporation, limited
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liability company, limited or general partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
"Preferred Stock" as applied to the Capital Stock of any
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corporation, shall mean Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of Capital
Stock of any other class of such corporation.
"Restricted Subsidiary" shall mean any Subsidiary of the Borrower
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that is not an Unrestricted Subsidiary.
"Subsidiary" shall mean any corporation, association,
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partnership, limited liability company or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) the Borrower, (ii)
the Borrower and one or more Subsidiaries or (iii) one or more
Subsidiaries.
"Unrestricted Subsidiary" has the meaning set forth in the Senior
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Subordinated Note Indenture as in effect on the date of execution
thereof.
"Voting Stock" of a corporation shall mean all classes of Capital
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Stock of such corporation then outstanding and normally entitled to
vote in the election of directors.
"Wholly Owned Subsidiary" shall mean a Restricted Subsidiary all
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the Capital Stock of which (other than directors'
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qualifying shares and shares held by other Persons to the extent such
shares are required by applicable law to be held by a Person other
than the Borrower or a Restricted Subsidiary) is owned by the Borrower
or one or more Wholly Owned Subsidiaries.'
2.20 The definition of "Documents" in Section 10 of the Credit
Agreement is amended by (i) deleting the word "and" contained after clause (c)
thereof and substituting a comma therefor and (ii) adding the phrase "and (e)
the Senior Subordinated Debt Documents" immediately after the phrase "Seller
Note Documents" contained therein.
2.21 The date "February 14, 2002" in the definition of "Expiry Date"
in Section 10 of the Credit Agreement is deleted and the date "May 6, 2002"
shall be substituted therefor.
2.22 The phrase "(as such term is defined in the definition of "Change
of Control")" in the definition of "Junior Subordinated Debt" is deleted and the
following shall be substituted therefor:
",dated as of February 14, 1997, among the Borrower, Windward,
Windward/Park, Windward/Merchant, Windward/Merban and the other
stockholders of the Borrower party thereto, as such agreement may be
amended, supplemented or otherwise modified from time to time"
2.23 The definition of "Margin Reduction Discount" in Section 10 of
the Credit Agreement is deleted.
2.24 The phrase ",4.02(A)(c)" is added to the definition of "Revolving
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Commitment" in Section 10 of the Credit Agreement immediately after the number
"3.03".
2.25 The following definitions are added to Section 10 of the Credit
Agreement in the correct alphabetical order:
'"Senior Subordinated Debt" shall mean the 10.75% Senior
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Subordinated Notes due 2007 of the Borrower issued pursuant to the
Senior Subordinated Debt Agreement, as amended, modified or
supplemented from time to time in accordance with the terms thereof
and hereof.
"Senior Subordinated Debt Agreement" shall mean the Indenture,
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dated as of May 6, 1997, by and among the Borrower, certain of the
Subsidiary Guarantors and IBJ Xxxxxxxx Bank & Trust
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Company, as trustee, as amended, modified or supplemented from time to
time in accordance with the terms thereof and hereof.
"Senior Subordinated Debt Documents" shall mean the Senior
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Subordinated Debt and all agreements, documents and instruments
entered into pursuant thereto or in connection therewith, as amended,
modified or supplemented from time to time in accordance with the
terms thereof and hereof.'
2.26 A new Section 12.15 is added to the Credit Agreement and reads as
follows:
"12.15 Designated Senior Indebtedness. For purposes of the
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Senior Subordinated Debt Agreement and the other Senior Subordinated
Debt Documents, all Obligations (including, without limitation, those
owing under the Guaranties) are designated as and shall be "Designated
Senior Indebtedness" (as defined in the Senior Subordinated Debt
Agreement)."
2.27 Schedule 1.01 to the Credit Agreement is deleted in its entirety
and a new Schedule 1.01 shall be substituted therefor in the form of Exhibit A
hereto.
2.28 Exhibit 7.01(e) to the Credit Agreement is deleted in its
entirety and a new Exhibit 7.01(e) shall be substituted therefor in the form of
Exhibit B hereto.
SECTION 3. SWINGLINE LOANS. Each of the Borrower, the Lenders and
the Agent agrees that, from and after the effectiveness of this Agreement and
until agreed to in writing by Fleet, no Swingline Loans shall be made under the
Credit Agreement and, to the extent that any Swingline Loans shall be
outstanding at the time of the effectiveness of this Agreement, a Borrowing of
Revolving Loans shall at the time of such effectiveness be deemed to be
requested by the Borrower and shall be made to repay in full all such
outstanding Swingline Loans (all as if Fleet had given notice to the Revolving
Lenders under Section 1.01(e) of the Credit Agreement that its outstanding
Swingline Loans be repaid at such time with a Borrowing of Revolving Loans).
SECTION 4. EFFECTIVENESS. This Agreement and the amendments
contemplated hereby shall become effective when:
(a) counterparts hereof have been duly executed and delivered to the
Agent on behalf of the Borrower, the Subsidiary Guarantors, the Lenders and the
Agent;
(b) the Agent shall be satisfied that, immediately after giving effect
to the amendments contemplated hereby, there shall exist no Default or Event of
Default both on the date hereof and on the date of (and after giving effect to)
satisfaction of the conditions precedent under
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the other clauses of this Section 4 and all representations and warranties
contained herein, in the Credit Agreement and in the other Loan Documents shall
be true and correct in all material respects both on the date hereof and on the
date of (and after giving effect to) satisfaction of the conditions precedent
under the other clauses of this Section 4 with the same effect as though such
representations and warranties had been made on and as of each such date except
to the extent that such representations and warranties relate to a specified
date;
(c) the Agent shall have received for the account of each Lender a new
Revolving Note duly executed by the Borrower payable to the order of such Lender
in a stated principal amount equal to such Lender's Revolving Commitment after
giving effect to the amendments contemplated herein;
(d) the Agent shall have received opinions, addressed to the Agent and
each of the Lenders and dated the date hereof, from each of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and O'Melveny & Xxxxx, in form and substance
satisfactory to the Agent;
(e) the Agent shall have received certified resolutions and other
evidence of all corporate and legal proceedings of the Borrower with respect to
this Agreement, the Revolving Notes referred to in clause (c) above and the
issuance of the Senior Subordinated Debt (as defined in Section 2 hereof) in
form and substance satisfactory to the Agent;
(f) the Borrower shall have received not less than $85,000,000 in
gross cash proceeds from the issuance of the Senior Subordinated Debt, the terms
of which (together with the terms of all other Senior Subordinated Debt
Documents) shall be satisfactory to the Agent and the Lenders, and the proceeds
thereof shall have been used to repay in full the Subordinated Debt (and the
Agent shall have received evidence satisfactory to the Agent of such repayment)
and all Obligations (other than contingent reimbursement obligations relating to
the undrawn amount of outstanding Letters of Credit) outstanding on the date of
effectiveness of this Agreement (including, without limitation, all principal,
interest and fees accrued or owing under the Credit Agreement through such date
and all breakage costs with respect to prepayment of Eurodollar Loans incurred
by any Lender in connection with such repayments.) The Agent shall be satisfied
that the issuance of the Senior Subordinated Debt shall have been consummated in
accordance with all applicable laws, rules and regulations;
(g) all of the Lenders (other than Fleet) shall have assigned their
Revolving Commitments to Fleet pursuant to Assignment Agreements satisfactory to
Fleet; and
(h) the Agent shall have received such other agreements, certificates
and documents as the Agent may reasonably request in connection with the
transactions herein contemplated.
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SECTION 5. INTEREST RATE. Each of the Borrower, the Lenders, the
Agent, and, by its signature below, each of the Subsidiary Guarantors, agrees
that where a Loan Document provides that any Obligations bear interest and/or be
payable at the interest rate applicable to Base Rate Loans constituting
Revolving Loans at such time, such interest rate shall be the interest rate then
payable on any Base Rate Loans constituting Revolving Loans plus the Borrowing
Base Utilization Fee Rate, if any, then in effect.
SECTION 6. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7. REFERENCES TO CREDIT AGREEMENT. From and after the
effectiveness of this Agreement and the amendments contemplated hereby, all
references in the Credit Agreement to "this Agreement", "hereof", "herein", and
similar terms shall mean and refer to the Credit Agreement, as amended and
modified by this Agreement, and all references in other documents to the Credit
Agreement shall mean such agreement as amended and modified by this Agreement.
SECTION 8. RATIFICATION AND CONFIRMATION. The Credit Agreement is
hereby ratified and confirmed and, except as herein agreed, remains in full
force and effect. The Borrower represents and warrants that both on the date
hereof and immediately after giving effect to the amendments herein contemplated
(i) all representations and warranties contained in any Loan Document are and
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made both on and as of the
date hereof and immediately after giving effect to the amendments herein
contemplated (except to the extent that such representations or warranties
expressly related to a specified date) and (ii) there exists and shall exist no
Default or Event of Default.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
HCC INDUSTRIES INC.
By ______________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
individually and as Agent
By ______________________________
Name:
Title:
By its signature below, each of the undersigned hereby (i) consents to the
foregoing amendment of the Credit Agreement, (ii) agrees to Section 5 of the
foregoing amendment, (iii) ratifies and confirms each of the Security Documents
and Guaranties to which it is a party and the security interests and liens
granted by it thereunder and (iv) agrees that pursuant to the Guaranty to which
it is a party it continues to guarantee the Obligations (including, without
limitation, any now or
14
hereafter created Obligations under the Credit Agreement as amended hereby) and
the security interests and liens granted by it under the Security Documents
shall continue to secure such Obligations.
HERMETIC SEAL CORPORATION
By ______________________________
Name:
Title:
NORFOLK AVON REALTY TRUST
By ______________________________
Name:
Title:
GLASSEAL PRODUCTS, INC.
By ______________________________
Name:
Title:
SEALTRON ACQUISITION CORP.
By ______________________________
Name:
Title:
15
SEALTRON, INC.
By ______________________________
Name:
Title:
HCC INDUSTRIES INTERNATIONAL
By ______________________________
Name:
Title:
16
Exhibit A
---------
Schedule 1.01
-------------
COMMITMENTS
-----------
Lender Revolving Commitment Total Commitment
------ -------------------- ----------------
Fleet Capital Corporation $20,000,000 $20,000,000
----------- -----------
TOTAL $20,000,000 $20,000,000
Exhibit B
---------
Form of Compliance Certificate
------------------------------
