Exhibit 10.2(b)
[EXECUTION VERSION]
FIRST AMENDMENT
AND
LIMITED WAIVER
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THE FIRST AMENDMENT AND LIMITED WAIVER TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of December 14, 1998 (this "Amendment"), to the Third
Amended and Restated Credit Agreement dated as of October 23, 1998 (as the same
may be amended, supplemented, restated or otherwise modified from time to time,
the "Credit Agreement") is entered into among Kaynar Technologies Inc., a
Delaware corporation (the "Borrower"), the other Credit Parties, the Co-Agent
and the Lenders (each as defined in the Credit Agreement) from time to time
party to the Credit Agreement and General Electric Capital Corporation, a New
York corporation, individually and as agent (in such capacity, "Agent") for
itself and the Lenders. Capitalized terms used and not otherwise defined
herein have the meanings assigned to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the other Credit Parties, the Agent, the
Co-Agent and the Lenders have entered into the Credit Agreement; and
WHEREAS, the Borrower and the other Credit Parties have requested that
the Agent, the Co-Agent and the Lenders amend the Credit Agreement to (i) extend
the final date permitted for the termination and unconditional release of all
Accommodation Obligations of the Borrower with respect to Indebtedness of M&M
assumed in connection with the M&M Acquisition from January 25, 1999, to March
31, 1999, and (ii) amend the Restricted Payment covenant to permit the
repurchase of shares of the Borrower's common Stock with an aggregate Fair
Market Value of up to $10,000,000;
WHEREAS, the Borrower and the other Credit Parties have requested that
the Agent, the Co-Agent and the Lenders grant limited waivers of the following
sections of the Credit Agreement:
(i) Section 5.18(a) of the Credit Agreement with respect to Cash
Management Systems for the Marcliff Subsidiaries;
(ii) Section 5.18(b) of the Credit Agreement with respect to loss
payable and additional insured endorsements of the Marcliff Subsidiaries;
(iii) Paragraphs (a) and (b) of Annex C to the Credit Agreement with
respect to establishment of Lock Boxes and tri-party blocked account
agreements, and
[EXECUTION VERSION]
Paragraph 1 (E) of Annex D to the Credit Agreement with respect to delivery
of evidence relating to Cash Management Systems, in each case in connection
with Borrower Accounts at Michigan National Bank, Bank of Xxxxxxx/Xxxxxxx
Xxxxx Xxxxxx, Xxxxx Xxxx, XxxxXxxxxx Bank of Delaware and CoreStates
Bank/Philadelphia;
(iv) Paragraph 1 (J) of Annex D to the Credit Agreement with respect to
delivery of the GE Capital Fee Letter;
(v) Paragraph 1 (P) of Annex D to the Credit Agreement with respect to
delivery of the Collateral Assignments;
(vi) Paragraph 2(G) of Annex D to the Credit Agreement with respect to
delivery of landlord waivers and bailee letters for the Marcliff
Subsidiaries;
WHEREAS, the Agent and the Lenders are willing to enter into such
amendments and waivers on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the above premises, the Borrower,
the other Credit Parties, the Agent, the Co-Agent and the Lenders agree as
follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. Upon the "Effective Date" (as
defined in Section 4 below), the Credit Agreement is hereby amended as follows:
a. AMENDMENT TO SECTION 6.6(ii). Section 6.6(ii) of the Credit
Agreement is amended by deleting the date "January 25, 1999" and
substituting in lieu thereof the date "March 31, 1999."
b. AMENDMENT TO SECTION 6.14(d). Section 6.14(d) is hereby amended by
deleting the phrase "and (d)" at the end of clause (c) thereof and
substituting the following in lieu thereof:
", (d) repurchases of Stock permitted by SECTION 6.5(b)(iii) above and
(e)"
2. Limited Waivers. Upon the Effective Date, the Agent, the Co-Agent
and the Lenders hereby grant, subject to the terms and conditions set forth
herein, the following limited waivers:
a. A limited waiver, until December 21, 1998, of the provisions of
Paragraph 1(J) of Annex D to the Credit Agreement with respect to (and only
with respect to) delivery by the Borrower of a duly executed original of
the GE Capital Fee Letter.
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[EXECUTION VERSION]
b. A limited waiver, until December 30, 1998, of the provisions of
Section 5.18(a) of the Credit Agreement with respect to (and only with
respect to) delivery by the Marcliff Subsidiaries of duly executed
tri-party blocked account and lock-box agreements in accordance with
Annex C to the Credit Agreement.
c. A limited waiver, until December 30, 1998, of the provisions of
Section 5.18(b) of the Credit Agreement with respect to (and only with
respect to) delivery by the Marcliff Subsidiaries of insurance
certificates with respect to the insurance polices required by Section 5.4
of the Credit Agreement, showing loss payable and/or additional insured
clauses or endorsements.
d. A limited waiver, until February 15, 1999, of the provisions of
Paragraphs (a) and (b) of Annex C to the Credit Agreement with respect to
(and only with respect to) the establishment by Borrower of Lock Boxes and
tri-party blocked account agreements, and Paragraph 1(E) of Annex D to the
Credit Agreement with respect to Borrower's delivery of evidence relating
to Cash Management Systems, in each case in connection with Borrower
Accounts at Michigan National Bank, Bank of Xxxxxxx/Xxxxxxx Xxxxx Xxxxxx,
Xxxxx Xxxx, XxxxXxxxxx Bank of Delaware and CoreStates Bank/Philadelphia.
e. A limited waiver, until February 15, 1999, of the provisions of
Paragraph 1(P) of Annex D to the Credit Agreement with respect to (and only
with respect to) delivery by the Borrower of duly executed copies of the
Collateral Assignments.
f. A limited waiver, until February 15, 1999, of the provisions of
Paragraph 2(G) of Annex D to the Credit Agreement with respect to (and only
with respect to) delivery by the Marcliff Subsidiaries of a duly executed
landlord waiver and consent with respect to the leased property in
Stoughton, Massachusetts.
3. REPRESENTATIONS AND WARRANTIES. The Credit Parties hereby jointly and
severally represent and warrant to the Agent, the Co-Agent and the Lenders
that, as of the Effective Date and after giving effect to this Amendment:
a. All of the representations and warranties of the Credit Parties
contained in this Amendment, the Credit Agreement and the other Loan
Documents are true and correct in all material respects on and as of the
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); and
b. Except with respect to provisions of the Credit Agreement expressly
waived herein, no Default of Event of Default has occurred or is
continuing or will result after giving effect to this Amendment.
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[EXECUTION VERSION]
4. EFFECTIVE DATE. This Amendment shall become effective as of the date
first written above (the "EFFECTIVE DATE") upon the satisfaction of each of the
following conditions:
a. The Agent shall have received each of the following documents, in
each case in form and substance satisfactory to the Agent, prior to 5:00
p.m. (New York time) on December 23, 1998:
i. counterparts hereof executed by the Credit Parties;
ii. a certificate of an officer of each of the Credit Parties
certifying that all conditions precedent to the effectiveness of this
Amendment have been satisfied;
iii. a certificate of the Secretary or Assistant Secretary of each
of the Credit Parties dated the Effective Date certifying (A) that the
By-laws of such Credit Party have not been amended or otherwise
modified since the date of the most recent certification thereof by the
Secretary or Assistant Secretary of such Credit Party delivered to the
Agent and remain in full force and effect as of the Effective Date, (B)
that the Articles of Incorporation of such Credit Party have not been
amended or otherwise modified since the date of the most recent
certification thereof by the Secretary of State of such Credit Party's
jurisdiction of incorporation delivered to the Agent and remain in full
force and effect as of the Effective Date and (C) that the execution,
delivery and performance of this Amendment have been approved and
authorized by all necessary corporate action; and
iv. such additional documentation as the Agent may reasonably
request;
b. No law, regulation, order, judgment or degree of any Governmental
Authority shall, and the the Agent shall not have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain the consummation of the transactions contemplated by this
Amendment, except for such laws, regulations, orders or degrees, 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 Credit Parties
contained in this Amendment, the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of
the 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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[EXECUTION VERSION]
d. All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the transactions contemplated by
this Amendment shall be satisfactory in all respects in form and substance
to the Agent; and
e. No Default or Event of Default shall have occurred and be continuing
on the Effective Date or will result after giving effect to this Amendment.
5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS
a. Upon the Effective Date, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import, and each
reference in the other Loan Documents to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended and supplemented
hereby.
b. Except to the extent specifically set forth herein, the respective
provisions of the Credit Agreement and the other Loan Documents shall not
be amended, modified, waived, impaired or otherwise affected hereby, and
such documents and the Obligations under each of them are hereby confirmed
as being in full force and effect.
c. This Amendment shall be limited solely to the matters expressly
set forth herein and shall not (i) constitute an amendment or waiver of
any other term or condition of the Credit Agreement or any other Loan
Document, (ii) prejudice any right or rights which the Agent or any
Lender 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
Agent or any Lender to agree to a similar transaction on a future
occasion or (iv) create any rights herein to another Person or other
beneficiary or otherwise, except to he extent specifically provided
herein.
6. MISCELLANEOUS. This Amendment is a Loan Document. The headings herein
are for convenience of reference only and shall not alter or otherwise affect
the meaning hereof.
7. COUNTERPARTS. This 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.
8. GOVERNING LAW. THIS 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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[EXECUTION VERSION]
9. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Amendment.
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[EXECUTION VERSION]
IN WITNESS WHEREOF, the Credit Parties, the Agent, the Co-Agent and the
Lenders have caused this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above written.
KAYNAR TECHNOLOGIES INC.
M&M MACHINE & TOOL CO.
MARCLIFF CORPORATION
XXXXXX CREATIVE FASTENER, INC.
RECOIL INC.
RECOIL HOLDINGS, INC.
RECOIL HOLDINGS AUSTRALIA, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION, as
Agent, Co-Agent and Lender
By:
----------------------------------------
Name:
Authorized Signatory
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[EXECUTION VERSION]
IN WITNESS WHEREOF, the Credit Parties, the Agent, the Co-Agent and the
Lenders have caused this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above written.
KAYNAR TECHNOLOGIES INC.
M&M MACHINE & TOOL CO.
MARCLIFF CORPORATION
XXXXXX CREATIVE FASTENER, INC.
RECOIL INC.
RECOIL HOLDINGS, INC.
RECOIL HOLDINGS AUSTRALIA, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION, as
Agent, Co-Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Authorized Signatory
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