EXHIBIT 4.2
AMENDMENT NO. 1 TO
CREDIT AGREEMENT
This Amendment No. 1 to Credit Agreement (this "Amendment"),
dated as of May 2, 2001, is entered into with reference to the Credit Agreement
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") dated as of September 29, 2000 among Ducommun Incorporated, a
Delaware corporation ("Borrower"), each lender from time to time a party thereto
(each a "Lender" and collectively, the "Lenders"), First Union National Bank, as
Syndication Agent, and Bank of America, N.A., as a Lender, as Issuing Lender,
and as Administrative Agent (in such capacity, the "Administrative Agent").
Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement. Section references herein relate to the Credit
Agreement unless otherwise stated.
The parties hereto hereby agree as follows:
1. Acquisition of Composite Structures, LLC. Each of the parties
hereto agrees that pursuant to the terms of that certain Unit and Stock Purchase
Agreement by and among Composite Structures, LLC, a Delaware limited liability
company ("CS, LLC"), its members and option holders, the shareholders of CSD
Holdings Corporation, a Delaware corporation and Borrower (the "Acquisition
Agreement"), Borrower shall acquire, directly and indirectly, all of the units
of CS, LLC (the "Acquisition"). The Lenders hereby consent to the Acquisition
(a) pursuant to the terms of the Acquisition Agreement and (b) subject to the
satisfaction of each of the terms and conditions set forth in this Amendment.
2. Definition of Adjusted EBITDA/Calculation of Acquired EBITDA.
(a) For the purpose of including the Acquired EBITDA of CS, LLC in the
calculation of Adjusted EBITDA, the Lenders hereby waive the requirement that
audited financial statements be delivered for the period ending December 31,
2000. The parties hereto hereby acknowledge that company prepared financial
statements for such fiscal period have been delivered, and are satisfactory, to
the Lenders.
(b) Notwithstanding the actual Acquired EBITDA of CS, LLC for
the fiscal period commencing one year prior to completion of the Acquisition and
ending on the date such Acquisition is completed (the "Period"), the Acquired
EBITDA of CS, LLC for such fiscal period shall be deemed to be $8,500,000. For
purposes of calculating the Acquired EBITDA of CS, LLC, on an ongoing basis,
$23,288 of Acquired EBITDA shall be attributable to each day of the Period.
3. Section 6.8(f) - Indebtedness and Contingent Obligations. The
reference to "$5,000,000" contained in Section 6.8(f) is hereby amended to read
"$10,000,000".
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4. Exhibit B - Compliance Certificate. The Compliance
Certificate attached to the Credit Agreement as Exhibit B is hereby amended and
restated in full in the manner set forth in Annex I to this Amendment.
5. Schedule 4.4 - Subsidiaries. Schedule 4.4 to the Credit
Agreement is hereby amended and restated in full in the manner set forth in
Annex II to this Amendment.
6. Effectiveness. This Amendment shall become effective on such
date as the Administrative Agent shall have received each of the following, each
of which shall be in form and substance satisfactory to the Administrative Agent
and the Lenders (the "Effective Date"):
(a) counterparts of this Amendment executed by Borrower;
(b) counterparts of the Consent and Reaffirmation of
Guarantors, in the form attached hereto as Annex IV, duly
executed by each of the parties thereto;
(c) counterparts of the Consent of Lenders, in the form
attached hereto as Annex V, duly executed by the Required
Lenders
(d) with respect to Borrower, (A) certified copies of
such corporate resolutions or other applicable authorization
documents evidencing the authority of Borrower to enter into and
perform under this Amendment, the Acquisition Agreement and each
of the other Credit Documents to which Borrower is a party,
including such other documents as shall be executed and
delivered by Borrower in connection with this Amendment, (B)
such documentation as Lender may reasonably require to establish
the due organization, valid existence and good standing of
Borrower; and (C) a Secretary's Certificate of Borrower that the
Certificate of Incorporation and Bylaws of the Borrower
delivered to Lender pursuant to Section 8.1 of the Credit
Agreement remain in full force and effect and have not been
amended other than attached to such certification;
(e) a Certificate of a Responsible Official of Borrower
making such representations and attaching such documents as
shall be required by the definition of "Permitted Acquisition";
and
(f) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Lenders
reasonably may require.
7. Conditions Subsequent. The Borrower hereby covenants and
agrees that (a) each of the conditions set forth below shall be satisfied (or
waived) in form and substance satisfactory to the Lenders, in their sole and
absolute discretion, as soon as practicable, but in no event later than fourteen
(14) days subsequent to the completion of the Acquisition, and (b) the failure
to satisfy such conditions (or obtain the applicable waiver(s) on or prior to
such date shall constitute an Event of Default.
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(a) Documentation. The Administrative Agent shall have
received, in form and substance satisfactory to the
Administrative Agent and the Lenders:
(i) counterparts of the Instrument of Joinder,
in the form attached hereto as Annex III, duly executed
by CS, LLC;
(ii) with respect to CS, LLC, (A) certified
copies of such corporate resolutions or other applicable
authorization documents evidencing the authority of CS,
LLC to enter into and perform under, the Instrument of
Joinder, the Guaranty and each of the other Credit
Documents to which CS, LLC is a party, including such
other documents as shall be executed and delivered by
CS, LLC in connection with this Amendment, (B) such
documentation as Agent may reasonably require to
establish the due organization, valid existence and good
standing of CS, LLC and (C) a Secretary's Certificate of
CS, LLC certifying that (1) the Certificate of Formation
and Amended and Restated Limited Liability Company
Agreement of CS, LLC attached thereto are complete,
true, correct, in full force and effect and have not
been amended, supplemented or otherwise modified except
as attached thereto;
(iii) a Certificate of a Responsible Official of
Borrower certifying that attached thereto are true,
correct, complete and fully executed copy of the
Acquisition Agreement and that the Acquisition has been
completed in accordance with the terms of the
Acquisition Agreement and all applicable Laws;
(iv) a Certificate of a Responsible Official of
Borrower to the effect that with respect to CS, LLC,
each of the representations and warranties set forth in
Section 4.4 are true and correct as of the date of this
Amendment; and
(v) the written legal opinion of James Heiser,
General Counsel for the Borrower, and Gibson, Dunn &
Crutcher, LLP, special counsel for Borrower and CS, LLC.
(b) Fees and Expenses. Borrower shall have reimbursed
the Administrative Agent and the Lenders for the Administrative
Agent's reasonable costs and expenses (including reasonable
attorney's fees and expenses) incurred in connection with the
negotiation and drafting of this Amendment and the transactions
contemplated hereby.
8. Representations and Warranties. Except (i) for
representations and warranties which expressly relate to a particular date or
which are no longer true and correct as a result of a change permitted by the
Credit Agreement or the other Credit Documents or (ii) as disclosed by Borrower
and approved in writing by the Required Lenders, the Borrower hereby represents
and warrants that each representation and warranty made by Borrower in Article 4
of the Credit Agreement (other than Sections 4.4(a), 4.5, 4.6 (first sentence),
4.10,
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and 4.19) are true and correct as of the date hereof as though such
representations and warranties were made on and as of the date hereof. Without
in any way limiting the foregoing, Borrower represents and warrants to the
Administrative Agent and the Lenders that no Default or Event of Default has
occurred and remains continuing or will result from the consents, amendments or
transactions set forth herein or contemplated hereby.
9. Confirmation. In all respects, the terms of the Credit
Agreement and the other Credit Documents, in each case as amended hereby or by
the documents referenced herein, are hereby confirmed.
IN WITNESS WHEREOF, Borrower, the Administrative Agent and the
Lenders have executed this Agreement as of the date first set forth above by
their duly authorized representatives.
DUCOMMUN INCORPORATED,
a Delaware corporation
By:
---------------------------------
Name:
Title:
BANK OF AMERICA N.A.,
as Administrative Agent
By:
---------------------------------
Name:
Title:
BANK OF AMERICA N.A., as Issuing
Lender, Swing Line Lender and a
Lender
By:
---------------------------------
Name:
Title:
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