FIFTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of December 5, 1997 (this "FIFTH AMENDMENT"), is entered into
between Kaynar Technologies Inc., a Delaware corporation (the "BORROWER") and
General Electric Capital Corporation, a New York corporation (the "LENDER")
and relates to that certain Amended and Restated Credit Agreement dated as of
August 12, 1996, between the Borrower and the Lender (as previously amended
as of December 17, 1996, April 30, 1997, June 25, 1997, and October 23, 1997,
the "CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender have entered into the Credit
Agreement; and
WHEREAS, the Borrower has requested that the Lender amend the Credit
Agreement (i) to extend the scheduled maturity date of the loans, (ii) to
increase the permitted amounts for capital expenditures, capital leases,
purchase money indebtedness and investments and (iii) to effect other
amendments, all as more fully described herein.
NOW, THEREFORE, in consideration of the above premises, the Borrower
and the Lender agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein have the meanings assigned to them in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. Upon the "Fifth Amendment
Effective Date" (as defined in SECTION 4 below), the Credit Agreement is
hereby amended as follows:
2.1 AMENDMENTS TO SECTION 1.01. Section 1.01 of the Credit Agreement
is amended as follows:
(a) The definition of "Scheduled Maturity Date" is hereby amended
to read in its entirety as follows:
"SCHEDULED MATURITY DATE" means January 3, 2001.
(b) The definition of "RCL" is hereby amended to read in its
entirety as follows:
"RCL" means Recoil Pty (f/k/a RCL Pty), an unlimited liability
company organized under the laws of the State of Victoria, Australia.
2.2 AMENDMENT TO SECTION 2.01(d). Section 2.01(d) of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(d) TERM NOTE; REPAYMENT OF THE TERM LOAN. (i) On the
Initial Closing Date, the Borrower executed and delivered to the Lender
a promissory note evidencing the Initial Term Loan. On the First
Amendment Effective Date, Borrower executed and delivered to the Lender
a substitute promissory note evidencing the Initial Term Loan and the
Supplemental Term Loan. On the Third Amendment Effective Date, Borrower
executed and delivered to the Lender a second substitute promissory
note evidencing the Initial Term Loan, the Supplemental Term Loan and
the Second Supplemental Term Loan. On the Amendment and Restatement
Effective Date, the Borrower executed and delivered to the Lender a
third substitute promissory note evidencing the Initial Term Loan, the
Supplemental Term Loan, the Second Supplemental Term Loan and the Third
Supplemental Term Loan. On the New First Amendment Effective Date, the
Borrower executed and delivered to the Lender a fourth substitute
promissory note, in substantially the form of EXHIBIT I attached hereto
and made a part hereof, evidencing the Term Loan (the "Term Note").
After the Fifth Amendment Effective Date, the Borrower shall make
quarterly installments of $100,000 each in respect of the outstanding
principal balance of the Term Loan, payable in equal installments on
the 1st day of January, April, July and October in each year,
commencing October 1, 1996, and ending October 1, 2000. The outstanding
principal balance of the Term Loan shall be payable in full on the
earlier of (x) the Scheduled Maturity Date (or, if not a Business Day,
the immediately preceding Business Day), and (y) the date of
acceleration of the Obligations or termination of the Commitments
pursuant hereto.
2.3 AMENDMENT TO SECTION 6.01(d)(ii). Section 6.01(d)(ii) of the
Credit Agreement is hereby amended to insert, immediately after the phrase "a
certificate", the following phrase: "substantially in the form of EXHIBIT M
attached hereto and made a part hereof".
2.4 AMENDMENT OF SECTION 8.01(iv). Section 8.01(iv) of the Credit
Agreement is hereby amended to delete the reference to "$3,000,000" in its
entirety and to substitute in lieu thereof "$5,000,000."
2.5 AMENDMENT TO SECTION 8.04(viii). Section 8.04(viii) of the
Credit Agreement is hereby amended to delete the reference to "$1,500,000" in
its entirety and to substitute in lieu thereof "$3,000,000."
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2.6 AMENDMENTS TO ARTICLE IX (FINANCIAL COVENANTS).
(a) AMENDMENT TO SECTION 9.01. Section 9.01 of the Credit
Agreement is hereby amended to amend and restate the Consolidated Cash
Flow table set forth therein as follows:
Date Minimum Amount
------------------ --------------
June 30, 1996 $ 8,000,000
September 30, 1996 $ 8,000,000
December 31, 1996 $ 8,000,000
March 31, 1997 $ 9,000,000
June 30, 1997 $ 9,000,000
September 30, 1997 $ 9,000,000
December 31, 1997 $ 9,000,000
March 31, 1998 $10,000,000
June 30, 1998 $12,000,000
September 30, 1998 $12,000,000
December 31, 1998 $15,000,000
March 31, 1999 $20,000,000
June 30, 1999 $20,000,000
September 30, 1999 $20,000,000
December 31, 1999 $20,000,000
March 31, 2000 $25,000,000
June 30, 2000 $25,000,000
September 30, 2000 $25,000,000
December 31, 2000 $25,000,000
(b) AMENDMENT TO SECTION 9.02. Section 9.02 of the Credit
Agreement is hereby amended to amend and restate the Consolidated Interest
Coverage Ratio table set forth therein as follows:
Date Minimum Ratio
------------------ -------------
June 30, 1996 2.50 to 1
September 30, 1996 2.50 to 1
December 31, 1996 2.75 to 1
March 31, 1997 2.75 to 1
June 30, 1997 2.75 to 1
September 30, 1997 2.75 to 1
December 31, 1997 and thereafter 3.00 to 1
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(c) AMENDMENT TO SECTION 9.03. Section 9.03 of the Credit
Agreement is hereby amended to amend and restate the Consolidated Total
Funded Indebtedness Coverage Ratio table set forth therein as follows:
Date Minimum Ratio
------------------ -------------
June 30, 1996 4.50 to 1
September 30, 1996 4.50 to 1
December 31, 1996, and thereafter 3.50 to 1
(d) AMENDMENT TO SECTION 9.04. The text of Section 9.04 of the
Credit Agreement is hereby deleted in its entirety and in lieu thereof the
words "[Intentionally Omitted]" are substituted.
(e) AMENDMENT TO SECTION 9.05. Section 9.05 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.05. CAPITAL EXPENDITURES. The Borrower shall not make or incur,
and shall not permit any of its Subsidiaries to make or incur, Capital
Expenditures in any Fiscal Year in an aggregate amount greater than
$20,000,000, PROVIDED, HOWEVER, that solely for purposes of calculating
compliance with the SECTION 9.05, (a) the amount of Capital
Expenditures made or incurred by the Borrower and its Subsidiaries in
any Fiscal Year shall not include Capital Expenditures made or incurred
in such Fiscal Year as a direct result of (i) the Borrower's or any of
its Subsidiaries' response to any Release of a Contaminant, (ii) any
Remedial Action taken by the Borrower or any of its Subsidiaries or
(iii) any efforts or activities of the Borrower or any of its
Subsidiaries to comply with any Environmental Law, and (b) the amount
of Capital Expenditures made or incurred by the Borrower and its
Subsidiaries in Fiscal Year 1996 shall not include Capital Expenditures
directly resulting from the Recoil Acquisition.
2.7 AMENDMENT TO EXHIBITS. A new exhibit, Exhibit M, Form of
Compliance Certificate, is hereby added to the Credit Agreement in the form
of ANNEX A attached hereto and made a part hereof.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lender that, as of the Fifth Amendment Effective Date and
after giving effect to this Fifth Amendment:
(a) All of the representations and warranties of the Borrower
contained in this Fifth Amendment, the Credit Agreement and the other
Loan Documents are true and correct in all material respects on and as
of the Fifth Amendment Effective Date, as if then made (other than
representations and warranties which expressly speak as of a different
date, which shall be true and correct in all material respects as of
that date);
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(b) No Potential Event of Default or Event of Default has occurred
or is continuing or will result after giving effect to this Fifth Amendment;
and
(c) The Borrower has not voluntarily, by operation of law or
otherwise, assigned, conveyed, transferred or encumbered, either directly or
indirectly, in whole or in part, any right to or interest in any of the
"Released Claims" (as defined in SECTION 6 below) purported to be released by
this Fifth Amendment.
4. FIFTH AMENDMENT EFFECTIVE DATE. This Fifth Amendment shall become
effective as of the date first written above (the "FIFTH AMENDMENT EFFECTIVE
DATE") upon the satisfaction of each of the following conditions:
(a) the Lender shall have received each of the following
documents, in each case in form and substance satisfactory to the Lender:
(i) counterparts hereof executed by the Borrower and the
Lender;
(ii) a certificate of the chief financial officer of the
Borrower certifying that all conditions precedent to the effectiveness of
this Fifth Amendment have been satisfied;
(iii) a certificate of the Secretary or Assistant Secretary of
the Borrower dated the Fifth Amendment Effective Date certifying (A) the names
and true signatures of the incumbent officers of the Borrower authorized to
sign this Fifth Amendment and the other Transaction Documents executed in
connection with this Fifth Amendment to which it is a party, (B) that the
By-laws of the Borrower have not been amended or otherwise modified since the
date of the most recent certification thereof by the Secretary or Assistant
Secretary of the Borrower delivered to the Lender and remain in full force
and effect as of the Fifth Amendment Effective Date, (C) that the Articles of
Incorporation of the Borrower have not been amended or otherwise modified
since the date of the most recent certification thereof by the Secretary of
State of Delaware delivered to the Lender and remain in full force and effect
as of the Fifth Amendment Effective Date and (D) the resolutions of the
Borrower's board of directors approving and authorizing the execution,
delivery and performance of this Fifth Amendment and the other Transaction
Documents executed in connection with this Fifth Amendment to which the
Borrower is a party; and
(iv) such additional documentation as the Lender may
reasonably request;
(b) no law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Lender shall not have received any
notice that litigation is pending or threatened which is likely to, enjoin,
prohibit or restrain the consummation
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of the transaction contemplated by this Fifth Amendment, except for such
laws, regulations, orders or decrees, or pending or threatened litigation
that in the aggregate could not reasonably be expected to result in a
Material Adverse Effect;
(c) all of the representations and warranties of the Borrower
contained in this Fifth Amendment, the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of the
Fifth Amendment Effective Date, as if then made (other than representations
and warranties which expressly speak as of a different date, which shall be
true and correct in all material respects as of that date);
(d) all corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Fifth Amendment shall be satisfactory in all respects in
form and substance to the Lender; and
(e) no Event of Default or Potential Event of Default shall have
occurred and be continuing on the Fifth Amendment Effective Date or will
result after giving effect to this Fifth Amendment.
5. OUTSTANDING INDEBTEDNESS. The Borrower hereby acknowledges and
agrees that as of September 30, 1997, the aggregate outstanding principal
amount of the Revolving Loans under the Credit Agreement was $103,636.19 and
that the aggregate outstanding principal amount of the Term Loan under the
Credit Agreement was $21,625,000 and that such principal amounts are payable
pursuant to the Credit Agreement, as amended hereby, without offset,
withholding, counterclaim or deduction of any kind. The Borrower, for itself
and on behalf of its officers and directors, and its respective predecessors,
successors and assigns (collectively, the "RELEASORS"), hereby waives,
releases and forever discharges the Lender, and its parent corporation,
Subsidiaries and Affiliates, officers, directors, shareholders employees,
attorneys, agents and servants, and its respective predecessors, successors,
heirs and assigns (collectively, the "LENDER PARTIES"), from any and all
claims of every type, kind, nature, description or character, known and
unknown, whensoever arising out of any actions or omissions of the Lender
Parties, except all such claims of Affiliates of Lender arising out of sales
of inventory in the ordinary course of business, occurring any time up to and
including the date hereof, which in any way arise out of, are connected with
or relate to the Credit Agreement or any other Loan Documents (the "RELEASED
CLAIMS") and agrees not to bring any action in any judicial, administrative
or other proceeding against the Lender Parties, alleging any such Released
Claim or otherwise in connection with any such Released Claim.
6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the Fifth Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import, and
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each reference in the other Loan Documents to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as amended hereby.
(b) This Fifth Amendment shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment of any
other term or condition of the Credit Agreement or any other Loan Document,
(ii) prejudice any right or rights which the Lender or Lender Parties may now
have or may have in the future under or in connection with the Credit
Agreement or any other Loan Document, (iii) require the Lender to agree to a
similar transaction on a future occasion, (iv) be deemed or construed as an
admission of liability with respect to the Released Claims or otherwise by
the Lender Parties or (v) create any rights herein to another Person or other
beneficiary or otherwise, except to the extent specifically provided herein.
(c) Except to the extent specifically consented to herein, the
respective provisions of the Credit Agreement and the other Loan Documents
shall not be amended, modified, impaired or otherwise affected hereby, and
such documents and the Obligations under each of them are hereby confirmed in
full force and effect.
7. MISCELLANEOUS. This Fifth Amendment is a Loan Document. The
headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof.
8. COUNTERPARTS. This Fifth Amendment may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
9. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Fifth Amendment to be executed by their respective officers thereunto duly
authorized as of the date first above written.
KAYNAR TECHNOLOGIES INC.
By:
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Xxxxx X. Xxxxxx
Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------
Name:
Authorized Signatory
