EXHIBIT 10.3
MCSW: 10/1/04
WAIVER
WAIVER (the "WAIVER"), dated as of October 1, 2004, by and among X.
X. XXXXXXX MEZZANINE FUND, L.P. ("WMF"), a Delaware limited partnership, ALBION
ALLIANCE MEZZANINE FUND I, L.P. ("ALBION I"), a Delaware limited partnership,
ALBION ALLIANCE MEZZANINE FUND II, L.P. ("ALBION II"), a Delaware limited
partnership, THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
("EQUITABLE"), a New York corporation, FLEET CORPORATE FINANCE, INC. ("FLEET"),
a Massachusetts corporation, and CITIZENS CAPITAL, INC. ("CITIZENS"; and
together with WMF, Albion I, Albion II, Equitable and Fleet, the "PURCHASERS"
and, individually, a "PURCHASER"), a Massachusetts corporation, and
TRANSTECHNOLOGY CORPORATION (the "COMPANY"), a Delaware corporation
W I T N E S S E T H:
WHEREAS, the Purchasers and the Company are parties to the
Securities Purchase Agreement, dated as of August 29, 2000, as amended by the
First Amendment Agreement dated as of August 7, 2002, and Second Amendment
Agreement dated as of August 26, 2003 (as so amended, the "AGREEMENT"); and
WHEREAS, the Company has advised the Purchasers that it may not be
in compliance with certain financial covenants as of and for the period ended
September 26, 2004 and has requested that in such event the Purchasers waive any
such non-compliance; and
WHEREAS, the Purchasers are willing to provide such waiver, subject
to the terms and conditions set forth in this Waiver.
NOW THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the Purchasers and the Company agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 ORIGINAL AGREEMENT DEFINITIONS.
All capitalized terms used in this Waiver but not defined shall have
the meanings given to them in the Agreement.
ARTICLE 2
WAIVER
If the Company and its Subsidiaries fail to comply with the covenants set
forth in Sections 9.8(a), 9.8(c), and 9.8(d) of the Agreement as of and for the
period ended September 30, 2004, the Purchasers waive such non-compliance.
ARTICLE 3
GUARANTY
Each Wholly-Owned Subsidiary Guarantor, by its signature below, hereby
consents and agrees to the entering into of this Waiver and acknowledges and
confirms that the Subsidiary Guaranty remains in full force and effect in
accordance with its terms on the date hereof and after giving effect to this
Waiver.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Purchaser as follows:
4.1 AUTHORITY, ETC. The execution and delivery by the Company of this
Waiver (i) are within the corporate authority of the Company, (ii) have
been duly authorized by all necessary corporate proceedings by the
Company, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to
which the Company is subject or any judgment, order, writ, injunction,
license or permit applicable to the Company, except in each case for the
conflicts, breaches or contraventions that would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on
the Condition of the Company (as defined in the Agreement) and (iv) do not
conflict with any provision of the corporate charter or by-laws of, or any
agreement or other instrument binding upon, the Company.
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4.2 NO DEFAULT. After giving effect to this Waiver, no default or Event
of Default exists or will exist under the Notes and no event has occurred
and no condition exists which with the giving of ..notice, or the passage
of time or both would create or become a default or an Event of Default.
ARTICLE 5
CONDITIONS TO EFFECTIVENESS
The effectiveness of this Waiver is conditioned upon the following
receipt by the Purchasers of an original counterpart signature to this Waiver,
duly executed and delivered by the Company and each Subsidiary Guarantor.
ARTICLE 6
MISCELLANEOUS
6.1 CONTINUED EFFECTIVENESS. The Agreement shall remain unchanged and in
full force and effect, and is hereby ratified in all respects.
6.2 NOTICES. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery at the address specified in Section 11.2 of the
Agreement, or to such other address or addresses for a party as shall have been
furnished in writing by such party to the other parties hereto.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; if mailed, five
Business Days after being deposited in the mail, postage prepaid; and if
telecopied, when receipt is acknowledged.
6.3 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Waiver shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto.
6.4 SIGNATURES; COUNTERPARTS. Telefacsimile transmissions of any
executed original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties hereto shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties. This Waiver may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
6.6 HEADINGS. The headings in this Waiver are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.7 GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, CONSTRUED IN
ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH
STATE.
6.8 SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof
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shall not be in any way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
6.9 CERTAIN EXPENSES. The Company will pay all reasonable out-of-pocket
expenses of the Purchasers (including without limitation reasonable fees,
charges and disbursements of counsel) in connection with this Waiver, any other
amendment, supplement, modification or waiver of or to any provision of the
Agreement, the Notes, the Warrants, or any consent to any departure by the
Company from the terms of any provision of the Agreement, the Notes, or the
Warrants.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed
and delivered by their respective officers hereunto duly authorized as of the
date first above written.
TRANSTECHNOLOGY CORPORATION
By: ________________________________________
Name:
Title:
X.X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, L.L.C.
By: ________________________________________
Name:
A Managing Member
ALBION ALLIANCE MEZZANINE FUND I, L.P.
By: Albion Alliance, LLC
Its General Partner
By: ________________________________________
Name:
Title:
ALBION ALLIANCE MEZZANINE FUND II, L.P.
By: AA MEZZ II GP,
Its General Partner
By: Albion Alliance, LLC
Its Sole Member
By: ________________________________________
Name:
Title:
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[FIRST SIGNATURE PAGE TO WAIVER]
AXA EQUITABLE LIFE INSURANCE COMPANY
By: ________________________________________
Name:
Title:
FLEET CORPORATE FINANCE, INC.
By: ________________________________________
Name:
Title:
CITIZENS CAPITAL, INC.
By: ________________________________________
Name:
Title:
[SECOND SIGNATURE PAGE TO WAIVER]
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Each of the undersigned Wholly Owned Subsidiary Guarantors agrees to the
provisions of Article 4.
TT CONNECTICUT CORPORATION
(F/K/A NORCO, INC.)
By: ________________________________________
Name:
Title:
RANCHO TRANSTECHNOLOGY
CORPORATION
By: ________________________________________
Name:
Title:
RETAINERS, INC.
By: ________________________________________
Name:
Title:
SSP INDUSTRIES
By: ________________________________________
Name:
Title:
SSP INTERNATIONAL SALES, INC.
By: ________________________________________
Name:
Title:
[THIRD SIGNATURE PAGE TO WAIVER]
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TTER USA, INC. (F/K/A TRANSTECHNOLOGY
ENGINEERED RINGS USA, INC.)
By: ________________________________________
Name:
Title:
TRANSTECHNOLOGY INTERNATIONAL
CORPORATION (F/K/A TRANSTECHNOLOGY XXXXXX,
INC.)
By: ________________________________________
Name:
Title:
TT MINNESOTA CORPORATION
(F/K/A TCR CORPORATION)
By: ________________________________________
Name:
Title:
[FOURTH SIGNATURE PAGE TO WAIVER]
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