EXHIBIT 10.39
FIRST AMENDMENT
Dated as of November 22, 1993
To
LOAN AGREEMENT
Dated as of April 28, 1993
This FIRST AMENDMENT, dated as of November 22, 1993 (this "Amendment")
is entered into by and among MagneTek, Inc., a Delaware corporation (the
"Borrower") and each of the undersigned banks or financial institutions
(collectively, the "Banks" and individually, a "Bank"), Continental Bank N.A.,
as Administrative Agent and Bank of America National Trust and Savings
Association, as Arranging Agent (collectively the "Agents").
WHEREAS, the Borrower (i) has entered into a Loan Agreement, dated as
of April 28, 1993, by and among the Borrower, the Banks and the Agents (the
"Loan Agreement"), and (ii) now desires to amend the Loan Agreement in certain
respects.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I - AMENDMENTS
1.1 AMENDMENT TO COVENANTS. Sections 6.15, 6.16 and 6.17 of the Loan
Agreement are amended to read in their entirety as follows:
6.15 LEVERAGE RATIO. Permit the Leverage Ratio, as of the last day
of each Fiscal Quarter ending during a period or at the date described below, to
be greater than the ratio set forth opposite such period or date:
Period Ratio
------ -----
Closing Date through June 29, 1993 .82 to 1.00
June 30, 1993 through September 30, .80 to 1.00
1994
December 31, 1994 through March 31, .76 to 1.00
1995
June 30, 1995 through September 30, .72 to 1.00
1995
December 31, 1995 .70 to 1.00
March 31, 1996 .67 to 1.00
June 30, 1996 and thereafter .65 to 1.00
6.16 INTEREST CHARGE COVERAGE. Permit Interest Charge Coverage, as
of the last day of each Fiscal Quarter ending during a period described below,
to be less than the ratio set forth opposite such period:
Period Ratio
------ -----
Closing Date through June 30, 1993 2.20 to 1.00
September 30, 1993 2.30 to 1.00 (1)
December 31, 1993 through June 30, 1.40 to 1.00
1994
September 30, 1994 1.70 to 1.00
December 31, 1994 2.00 to 1.00
March 31, 1995 2.20 to 1.00
June 30, 1995 2.30 to 1.00
September 30, 1995 and thereafter 2.40 to 1.00
6.17 FIXED CHARGE COVERAGE. Permit the Fixed Charge Coverage, as of
the last day of each Fiscal Quarter ending during a period described below, to
be less than the ratio set forth opposite such period:
Period Ratio
------ -----
Closing Date through June 30, 1993 1.80 to 1.00
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(1) Waived by waiver letter dated September 20, 1993.
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September 30, 1993 1.35 to 1.00
December 31, 1993 through June 30, .78 to 1.00
1994
September 30, 1994 .95 to 1.00
December 31, 1994 1.10 to 1.00
March 31, 1995 and thereafter 1.20 to 1.00
1.2 AMENDMENT FEE. Forthwith upon this Amendment becoming effective
pursuant to SECTION 2.3 below, the Borrower agrees to pay to the Administrative
Agent, for the respective accounts of the Banks, pro rata according to their Pro
Rata Share of the Commitment, in immediately available funds, an amendment fee
equal to 0.15% of the Commitment.
ARTICLE II - GENERAL
2.1 REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter
into this Amendment, the Borrower represents and warrants to the Agents and the
Banks that the representations and warranties contained in SECTIONS 4.1 (first
sentence), 4.2, 4.3, 4.11, 4.12 (but only with respect to Events of Default) and
4.14 of the Loan Agreement are true and correct as of the date hereof as though
such representations and warranties were made on the date hereof.
2.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this Amendment when taken together will be deemed to be but one
and the same Amendment.
2.3 EFFECTIVENESS. When counterparts of this Amendment executed by
the Borrower and by the Majority Banks shall have been lodged with the
Administrative Agent (or, in the case of any party other than the Borrower as to
which an executed counterpart shall not have been so lodged, the Administrative
Agent shall have received telegraphic, telex or other written confirmation of
execution of a counterpart hereof by such party),
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this Amendment shall become effective as of the date hereof and the
Administrative Agent shall so inform all of the parties hereto.
2.4 REAFFIRMATION. As herein amended or modified, the Loan Agreement
shall remain in full force and effect and is hereby ratified, approved and
confirmed in all respects.
2.5 DEFINITIONS. Terms used but not otherwise defined herein are
used herein as defined in the Loan Agreement. On and after the effective date
hereof, each reference in the Loan Agreement and the related documents to "Loan
Agreement," "this Agreement" or words of like import, shall unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended hereby.
2.7 COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
fees and out-of-pocket costs and expenses of McDermott, Will & Emery as counsel
to the Administrative Agent in connection with the preparation of this
Amendment, all pursuant to itemized statement(s) to be submitted to the Borrower
by McDermott, Will & Emery.
2.8 BINDING AGREEMENT. This Amendment shall be binding upon the
Borrower, the Banks and the Agents and the respective successors and assigns of
the Banks and the Agents.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWER:
MAGNETEK, INC.
By: ______________________________
Name:
Title:
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: ______________________________
Name:
Title:
CONTINENTAL BANK N.A., as a Bank
By: ______________________________
Name:
Title:
CIBC INC., as a Bank
By: ______________________________
Name:
Title:
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NATIONAL CITY BANK, as a Bank
By: ______________________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A., as a
Bank
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By: ______________________________
Name:
Title:
CHEMICAL BANK, as a Bank
By: ______________________________
Name:
Title:
THE BANK OF CALIFORNIA, N.A., as a
Bank
By: ______________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By: ______________________________
Name:
Title:
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SECOND AMENDMENT AND WAIVER
Dated as of January 2, 1994
To
LOAN AGREEMENT
Dated as of April 28, 1993
This SECOND AMENDMENT AND WAIVER, dated as of January 2, 1994 (this
"Amendment and Waiver") is entered into by and among MagneTek, Inc., a Delaware
corporation (the "Borrower") and each of the undersigned banks or financial
institutions (collectively, the "Banks" and individually, a "Bank"), Continental
Bank N.A., as Administrative Agent and Bank of America National Trust and
Savings Association, as Arranging Agent (collectively the "Agents").
WHEREAS, the Borrower (i) has entered into a Loan Agreement, dated as
of April 28, 1993, by and among the Borrower, the Banks and the Agents, as
amended (the "Loan Agreement"), (ii) now desires to further amend the Loan
Agreement in certain respects, and (iii) further desires that the Majority Banks
waive compliance with certain covenants as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I - AMENDMENTS
1.1 AMENDMENT TO DEFINITIONS. The following definitions are hereby
amended as follows:
1.1.1 "APPLICABLE ALTERNATE BASE RATE MARGIN" is amended by substituting
the following for the last line of the table set forth therein:
.80 to 1 or greater, 25.0
but less than .85 to 1
.85 to 1 or greater 50.0;
1.1.2 "APPLICABLE CD RATE MARGIN" is amended by substituting the following
for the last line of the table set forth therein:
.80 to 1 or greater, 162.5
but less than .85 to 1
.85 to 1 or greater 187.5;
1.1.3 "APPLICABLE EURODOLLAR RATE MARGIN" is amended by substituting the
following for the last line of the table set forth therein:
.80 to 1 or greater, 150.0
but less than .85 to 1
.85 to 1 or greater 175.0;
1.1.4 "APPLICABLE FINANCIAL SLC FEE RATE" is amended by substituting the
following for the last line of the table set forth therein:
.80 to 1 or greater, 150.0
but less than .85 to 1
.85 to 1 or greater 175.0;
1.1.5 "APPLICABLE PERFORMANCE SLC FEE RATE" is amended by substituting the
following for the last line of the table set forth therein:
.80 to 1 or greater, 112.5
but less than .85 to 1
.85 to 1 or greater 137.5;
1.2 AMENDMENT OF COMMITMENT FEE. Section 3.4 of the Loan Agreement
is amended to read in its entirety as follows:
3.4 COMMITMENT FEES. From the date of execution and delivery of
this Agreement, Borrower shall pay to the Administrative Agent, for the
respective accounts of the Banks, pro rata according to their Pro Rata
Share of the Commitments, a commitment fee equal to a rate (the "Commitment
Fee Rate") of 1/4 of 1% (25 basis points) per annum TIMES the daily amount,
if any, by which the Commitment exceeds the SUM of (a) the principal
Indebtedness then evidenced by the Committed Advance Notes PLUS (b) the
Aggregate Effective Amount of all Standby Letters of Credit then
outstanding; PROVIDED, HOWEVER, that if with respect to any Pricing Period
the Leverage Ratio is .85 to 1 or greater
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as of the last day of the Related Fiscal Quarter then the Commitment Fee
Rate for such Pricing Period shall be 3/8 of 1% (37.5 basis points) per
annum. The commitment fees shall be payable quarterly in arrears on each
Quarterly Payment Date, and on the Maturity Date or earlier termination of
the Commitment.
1.3 AMENDMENT FEE. Forthwith upon this Amendment and Waiver becoming
effective pursuant to SECTION 3.3 below, the Borrower agrees to pay to the
Administrative Agent, for the respective accounts of the Banks, pro rata
according to their Pro Rata Share of the Commitment, in immediately available
funds, an amendment fee equal to 0.05% of the Commitment.
ARTICLE II - WAIVER
2.1 WAIVER OF COVENANTS. In reliance on the Borrower's warranties
set forth in SECTION 3.1 below, as of the date hereof the Banks shall hereby
waive compliance by the Borrower with the Tangible Net Worth and Leverage Ratio
covenants set forth in Sections 6.14 and 6.15, respectively, of the Loan
Agreement for the Fiscal Quarter ending January 2, 1994.
2.2 LIMITED WAIVER. The waiver set forth in SECTION 2.1 above
relates solely to the Fiscal Quarter ending January 2, 1994 and does not
constitute a waiver of such covenants for any subsequent period, or a waiver of
any other term or conditions under the Loan Agreement.
ARTICLE III - GENERAL
3.1 REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter
into this Amendment and Waiver, the Borrower represents and warrants to the
Agents and the Banks that the representations and warranties contained in
Sections 4.1 (first sentence), 4.2, 4.3, 4.11, 4.12 (but only with respect to
Events of Default) and 4.14 of the Loan Agreement are true and correct as of the
date hereof as though such representations and warranties were made on the date
hereof.
3.2 COUNTERPARTS. This Amendment and Waiver may be executed in any
number of counterparts and any party hereto may execute any counterpart, each of
which when executed and delivered will be deemed to be an original and all of
which
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counterparts of this Amendment and Waiver when taken together will be deemed to
be but one and the same Amendment and Waiver.
3.3 EFFECTIVENESS. When counterparts of this Amendment and Waiver
executed by the Borrower and by the Majority Banks shall have been lodged with
the Administrative Agent (or, in the case of any party other than the Borrower
as to which an executed counterpart shall not have been so lodged, the
Administrative Agent shall have received telegraphic, telex or other written
confirmation of execution of a counterpart hereof by such party), this Amendment
and Waiver shall become effective as of the date hereof and the Administrative
Agent shall so inform all of the parties hereto.
3.4 REAFFIRMATION. As herein amended or modified, the Loan Agreement
shall remain in full force and effect and is hereby ratified, approved and
confirmed in all respects.
3.5 DEFINITIONS. Terms used but not otherwise defined herein are
used herein as defined in the Loan Agreement. On and after the effective date
hereof, each reference in the Loan Agreement and the related documents to "Loan
Agreement," "this Agreement" or words of like import, shall unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended hereby.
3.6 COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
fees and out-of-pocket costs and expenses of McDermott, Will & Emery as counsel
to the Administrative Agent in connection with the preparation of this Amendment
and Waiver, all pursuant to itemized statement(s) to be submitted to the
Borrower by McDermott, Will & Emery.
3.7 BINDING AGREEMENT. This Amendment and Waiver shall be binding
upon the Borrower, the Banks and the Agents and the respective successors and
assigns of the Banks and the Agents.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWER:
MAGNETEK, INC.
By: ______________________________
Name:
Title:
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: ______________________________
Name:
Title:
CONTINENTAL BANK N.A., as a Bank
By: ______________________________
Name:
Title:
CIBC INC., as a Bank
By: ______________________________
Name:
Title:
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NATIONAL CITY BANK, as a Bank
By: ______________________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A., as a
Bank
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By: ______________________________
Name:
Title:
CHEMICAL BANK, as a Bank
By: ______________________________
Name:
Title:
THE BANK OF CALIFORNIA, N.A., as a
Bank
By: ______________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By: ______________________________
Name:
Title:
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THIRD AMENDMENT
Dated as of March 31, 1994
To
LOAN AGREEMENT
Dated as of April 28, 1993
This THIRD AMENDMENT, dated as of March 31, 1994 (this "Amendment") is
entered into by and among MagneTek, Inc., a Delaware corporation (the
"Borrower") and each of the undersigned banks or financial institutions
(collectively, the "Banks" and individually, a "Bank"), Continental Bank N.A.,
as Administrative Agent and Bank of America National Trust and Savings
Association, as Arranging Agent (collectively the "Agents").
WHEREAS, the Borrower has entered into a Loan Agreement, dated as of
April 28, 1993, by and among the Borrower, the Banks and the Agents, as amended
(the "Loan Agreement") and now desires to amend or modify the Loan Agreement in
certain respects.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I - AMENDMENTS
1.1 DIVESTITURE ASSETS. Section 1 of the Loan Agreement is amended
to add a definition of "Divestiture Assets" as follows:
"DIVESTITURE ASSETS" means the assets comprising the Borrower's six
business groups which were described as divestiture candidates in the
Borrower's press release dated January 6, 1994.
1.2 DEFINITION OF LEVERAGE RATIO. The definition of Leverage Ratio
is amended by adding the following at the end thereof:
Notwithstanding any provision in the Loan Agreement to the contrary, during
calendar year 1994 the designation by the Borrower of any one or more of
MagneTek Europe N.V. and its Subsidiaries as Restricted Subsidiaries shall
be disregarded in the determination of Leverage Ratio pursuant to SECTION
3.4 of the Loan Agreement and the definitions of "Applicable
Alternate Base Rate Margin", "Applicable CD Rate Margin", "Applicable
Eurodollar Rate Margin", "Applicable Financial SLC Fee Rate" and
"Applicable Performance SLC Fee Rate", it being understood that, pursuant
to Section 7.1(b) of the Loan Agreement, following such designation, the
Borrower shall provide two calculations for calendar year 1994 of the
Leverage Ratio, one of which shall for purposes of SECTION 3.4 and such
definitions disregard such designation, and the other of which shall for
purposes of SECTION 6.15 of the Loan Agreement, give effect to such
designation.
1.3 DEFINITION OF FIXED CHARGE COVERAGE. The definition of "Fixed
Charge Coverage" is amended by adding the following at the end thereof.
Notwithstanding any provision in the Loan Agreement to the contrary,
the Fixed Charge Coverage shall be determined such that (i) in calculating
Available Cash Flow, Net Cash Proceeds received after December 31, 1993 in
respect of the Divestiture Assets shall not reduce Net Cash Capital
Expenditures, and (ii) the Senior Notes shall be excluded from the amount
of aggregate principal payments on Funded Debt scheduled to be made for any
applicable period.
1.4 DEFINITIONS OF FIXED CHARGE AND INTEREST COVERAGES. Each of the
definitions of "Fixed Charge Coverage" and "Interest Charge Coverage" is amended
by adding the following at the end thereof.
Notwithstanding any provision in the Loan Agreement to the contrary,
each of the Interest Charge Coverage and the Fixed Charge Coverage (i) for
the Fiscal Quarter ending March 31, 1994 shall be based solely on the
fiscal period consisting of the Fiscal Quarter ending March 31, 1994, (ii)
for the Fiscal Quarter ending June 30, 1994, shall be based solely on the
period consisting of the two consecutive Fiscal Quarters ending June 30,
1994 taken as a single fiscal period, (iii) for the Fiscal Quarter ending
September 30, 1994 shall be based solely on the period consisting of three
consecutive fiscal quarters ending September 30, 1994 taken as a single
fiscal period, and (iv) for any Fiscal Quarter ending on or after
December 31, 1994 shall be based on the period consisting of the four
consecutive Fiscal Quarters then ending, taken as a single fiscal period.
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1.5 DEFINITION OF TANGIBLE NET WORTH. The definition of Tangible Net
Worth is amended to read in its entirety as follows:
"TANGIBLE NET WORTH" means, as of any date of determination, the
Shareholders' Equity of Borrower and its Restricted Subsidiaries on that
date, PLUS the amount (if any) by which the after tax restructuring charge
applicable to the Borrower's fiscal quarter ending December 31, 1993
exceeds the net after tax gain from the sale of the Divestiture Assets,
MINUS the aggregate Intangible Assets of Borrower and its Restricted
Subsidiaries that were acquired or arose on or after the Closing Date.
1.6 DEFINITION OF TNW ADJUSTMENT AMOUNT. Section 1 of the Loan
Agreement is amended by adding a definition of "TNW Adjustment Amount" as
follows:
"TNW ADJUSTMENT AMOUNT" means the amount, if any, by which the actual
Tangible Net Worth as of the end of the Fiscal Quarter immediately
preceding the designation by the Borrower of any one or more of MagneTek
Europe N.V. and its Subsidiaries as Restricted Subsidiaries pursuant to
SECTION 1.7 exceeds the required Tangible Net Worth as of the end of such
Fiscal Quarter.
1.7 AMENDMENT OF TANGIBLE NET WORTH COVENANT. Section 6.14 of the
Loan Agreement is amended by adding thereto the following:
Notwithstanding the foregoing, after the designation by the Borrower
of any one or more of MagneTek Europe N.V. and its Subsidiaries as
Restricted Subsidiaries pursuant to SECTION 1.7, the Borrower shall not
permit Tangible Net Worth, as of the last day of each Fiscal Quarter, to be
less than the sum of (a) consolidated Shareholder's Equity of the Borrower
as of the end of the Fiscal Quarter immediately preceding such designation,
MINUS the TNW Adjustment Amount, PLUS (b) an amount equal to 50% of the Net
Income earned in each Fiscal Quarter subsequent to the Fiscal Quarter
immediately preceding such designation (with no deduction for a net loss in
any such Fiscal Quarter), PLUS (c) an amount equal to 75% of the aggregate
net cash proceeds received by the Borrower subsequent to the Fiscal Quarter
immediately preceding such designation from (i) the issuance and sale
(other than to a Subsidiary of Borrower) of capital
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stock (or warrants or options to purchase capital stock) other than
Disqualified Stock or (ii) the conversion or exchange of any debt or any
equity security into capital stock other than Disqualified Stock.
1.8 AMENDMENT OF LEVERAGE RATIO. Section 6.15 of the Loan Agreement
is amended to read in its entirety as follows:
6.15 LEVERAGE RATIO. Permit the Leverage Ratio, as of the last day
of each Fiscal Quarter ending during a period or at the date described
below, to be greater than the ratio set forth opposite such period or date:
Period Ratio
------ -----
Closing Date through June 29, 1993 .82 to 1.00
June 30, 1993 through December 31, .80 to 1.00
1994
March 31, 1994 .88 to 1.00
June 30, 1994 through September 30, .85 to 1.00
1994
December 31, 1994 .67 to 1.00
March 31, 1995 and thereafter .65 to 1.00
1.9 AMENDMENT OF INTEREST CHARGE COVERAGE. Section 6.16 of the Loan
Agreement is amended to read in its entirety as follows:
6.16 INTEREST CHARGE COVERAGE. Permit Interest Charge Coverage, as
of the last day of each Fiscal Quarter ending during a period described
below, to be less than the ratio set forth opposite such period:
Period Ratio
------ -----
Closing Date through June 30, 1993 2.20 to 1.00
September 30, 1993 2.30 to 1.00
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December 31, 1993 1.40 to 1.00
March 31, 1994 1.00 to 1.00
June 30, 1994 1.20 to 1.00
September 30, 1994 1.30 to 1.00
December 31, 1994 1.40 to 1.00
March 31, 1995 1.80 to 1.00
June 30, 1995 2.00 to 1.00
September 30, 1995 and thereafter 2.40 to 1.00
1.10 AMENDMENT OF FIXED CHARGE COVERAGE. Section 6.17 of the Loan
Agreement is amended to read in its entirety as follows:
6.17 FIXED CHARGE COVERAGE. Permit the Fixed Charge Coverage, as of
the last day of each Fiscal Quarter ending during a period described below,
to be less than the ratio set forth opposite such period:
Period Ratio
------ -----
Closing Date through June 30, 1993 1.80 to 1.00
September 30, 1993 1.35 to 1.00
December 31, 1993 0.78 to 1.00
March 31, 1994 0.95 to 1.00
June 30, 1994 1.10 to 1.00
September 30, 1994 1.30 to 1.00
December 31, 1994 1.40 to 1.00
March 31, 1995 1.65 to 1.00
June 30, 1995 1.85 to 1.00
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September 30, 1995 2.00 to 1.00
December 31, 1995 and thereafter 2.20 to 1.00
1.11 NET CASH PROCEEDS. The following new Section 5.13 shall be
added to the Loan Agreement:
5.13 NET CASH PROCEEDS. As soon as reasonably practicable following
receipt by the Borrower of any Net Cash Proceeds from the Divestiture
Assets, apply such Net Cash Proceeds to reduce the Notes and/or the Senior
Notes in accordance with the respective terms thereof.
ARTICLE II - CONSENT
2.1 CONSENT TO DESIGNATION OF RESTRICTED SUBSIDIARIES. Pursuant to
Section 1.7 of the Loan Agreement, the Banks consent to the designation by the
Borrower of any one or more of MagneTek Europe N.V. and its Subsidiaries listed
on Schedule I as Restricted Subsidiaries, the effectiveness of such consent and
designation to be subject, however, to the following conditions: (i) after the
effective date of this Amendment the Borrower shall have received not less than
$45,000,000 of Net Cash Proceeds from the sale of Divestiture Assets and shall
have so certified to the Administrative Agent, (ii) the Administrative Agent
shall have received a notice from the Borrower specifying which Subsidiaries of
MagneTek Europe N.V. shall, together with MagneTek Europe N.V., become
Restricted Subsidiaries (MagneTek Europe N.V. and such Subsidiaries being called
collectively the "Designated Subsidiaries"), (iii) no Default or Event of
Default shall have occurred or be continuing or result from such designation and
the Borrower shall have so certified to the Administrative Agent, and (iv) the
Borrower shall have furnished or cause to be furnished to the Collateral Agent
under the Intercreditor Agreement a first and prior perfected lien on all of the
stock or equity interest of (x) MagneTek Europe N.V. and (y) any Designated
Subsidiary which is then a Subsidiary of the Borrower but is not then a
Subsidiary of MagneTek Europe N.V., such pledge and security interest to be
accompanied by documentation (including pledge agreement, resolutions, and
opinion of counsel) in form and substance acceptable to the Administrative Agent
and its counsel.
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It being understood that references in this Amendment to the
designation by the Borrower of any one or more of MagneTek Europe N.V. and its
Subsidiaries as Restricted Subsidiaries shall mean a designation in accordance
with this SECTION 2.1.
2.2 RESERVATION. Nothing in this Agreement constitutes a waiver by
the Banks of any right to consent to the disposition of assets pursuant to
Section 6.3, 6.8 or 6.10 of the Loan Agreement or to consent to the release of
any collateral pursuant to Section 11.2 of the Loan Agreement or Section 5 of
the Intercreditor Agreement, it being understood that the Banks expressly
reserve the right to consent to any such disposition or release, provided that
for this purpose the sale of the Divestiture Assets to the extent in compliance
with Section 6.3 of the Loan Agreement shall not be deemed a violation of
Section 6.8 of the Loan Agreement.
ARTICLE III - GENERAL
3.1 AMENDMENT FEE. In connection with this Amendment, the Borrower
agrees to pay to the Administrative Agent, for the respective accounts of the
Banks, pro rata according to their Pro Rata Share of the Commitment, in
immediately available funds, an amendment fee equal to 0.15% of the Commitment.
3.2 REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter
into this Amendment, the Borrower represents and warrants to the Agents and the
Banks that (a) the representations and warranties contained in Sections 4.1,
4.2, 4.3, 4.8, 4.9, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.19 and 4.20 of the
Loan Agreement are true and correct as of the date hereof as though such
representations and warranties were made on the date hereof, and (b) the
Borrower is in the process of amending its Note Purchase Agreement relating to
the Senior Notes and upon execution thereof, the Borrower will furnish a
certified copy to the Agents and each Bank.
3.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this
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Amendment when taken together will be deemed to be but one and the same
Amendment.
3.4 EFFECTIVENESS. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of the following: (i) the amendment fee
referred to in Section 3.1, and (ii) counterparts of this Amendment executed by
the Borrower and by the Majority Banks (whether on the same or different
counterparts). Upon receipt by the Administrative Agent of the foregoing, this
Amendment shall become effective as of the date hereof and the Administrative
Agent shall so inform all of the parties hereto.
3.5 REAFFIRMATION. As herein amended or modified, the Loan Agreement
shall remain in full force and effect and is hereby ratified, approved and
confirmed in all respects.
3.6 DEFINITIONS. Terms used but not otherwise defined herein are
used herein as defined in the Loan Agreement. On and after the effective date
hereof, each reference in the Loan Agreement and the related documents to "Loan
Agreement," "this Agreement" or words of like import, shall unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended hereby.
3.7 COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
fees and out-of-pocket costs and expenses of McDermott, Will & Emery as counsel
to the Administrative Agent in connection with the preparation of this
Amendment, all pursuant to itemized statement(s) to be submitted to the Borrower
by McDermott, Will & Emery.
3.8 BINDING AGREEMENT. This Amendment shall be binding upon the
Borrower, the Banks and the Agents and the respective successors and assigns of
the Banks and the Agents.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWER:
MAGNETEK, INC.
By: ______________________________
Name:
Title:
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: ______________________________
Name:
Title:
CONTINENTAL BANK N.A., as a Bank
By: ______________________________
Name:
Title:
CIBC INC., as a Bank
By: ______________________________
Name:
Title:
NATIONAL CITY BANK, as a Bank
By: ______________________________
Name:
Title:
-9-
NATIONSBANK OF TEXAS, N.A., as a
Bank
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By: ______________________________
Name:
Title:
CHEMICAL BANK, as a Bank
By: ______________________________
Name:
Title:
THE BANK OF CALIFORNIA, N.A., as a
Bank
By: ______________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By: ______________________________
Name:
Title:
-10-
FOURTH AMENDMENT AND WAIVER
Dated as of June 21, 1994
To
LOAN AGREEMENT
Dated as of April 28, 1993
This FOURTH AMENDMENT AND WAIVER dated as of June 21, 1994 (this
"Amendment") is entered into by and among MagneTek, Inc., a Delaware Corporation
(the "Borrower") and each of the banks or financial institutions listed below
(collectively, the "Banks" and each individually, a "Bank"), Continental Bank
N.A., as Administrative Agent and Bank of America National Trust and Savings
Association, as Arranging Agent (collectively the "Agents").
WHEREAS, the Borrower has entered into a Loan Agreement, dated as of
April 28, 1993, by and among the Borrower, the Banks and the Agents, as amended
(the "Loan Agreement");
WHEREAS, the Borrower and MagneTek Controls, Inc. ("MagneTek
Controls") have entered into an Agreement, pursuant to which (i) each has agreed
to sell, in the case of MagneTek Controls, all or substantially all of its
assets and in the case of the Borrower, substantially all of the assets of its
Transducers Division, and (ii) the purchaser has agreed to assume the
liabilities related to such assets, for an aggregate purchase price of
$46,000,000, subject to adjustment upward or downward based on the closing
balance sheet, as to which $43,700,000 is payable in cash on or about June 30,
1994 or such other date agreed to by the Borrower and MagneTek Controls (the
"Proposed Sale of MagneTek Controls");
WHEREAS, the Borrower now desires that the Banks amend, modify or
clarify the Loan Agreement in certain respects as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I - AMENDMENTS, WAIVERS, CONFIRMATIONS, ETC.
In reliance on the Borrower's representations and warranties set forth
in SECTION 2.1 below, as of the date hereof the Majority Banks hereby:
1.1 DISPOSITION OF PROPERTY. (i) Waive the requirements of Section
6.3 of the Loan Agreement to the extent necessary to permit the Proposed Sale of
MagneTek Controls, and (ii) agree that the Net Cash Proceeds generated from such
sale shall be excluded from the calculation in Section 6.3(a)(ii).
1.2 CHANGE IN NATURE OF BUSINESS. Confirm that any Disposition of
Property permitted pursuant to Section 6.3 or consented to by a waiver of
Section 6.3 shall automatically constitute an acknowledgement that the
Disposition is not deemed to result in a material change in the nature of the
business of the Borrower and its Restricted Subsidiaries for purposes of Section
6.8.
1.3 SALE OF ACCOUNTS RECEIVABLE. Amend Section 6.10 of the Loan
Agreement by inserting the following in the second line immediately after the
words "accounts receivable":
(other than accounts receivable comprising part of a Disposition of
Property permitted pursuant to Section 6.3 or consented to by a waiver of
Section 6.3)
1.4 INVESTMENTS AND ACQUISITIONS. Confirm that nothing contained in
Section 6.18 of the Loan Agreement is deemed to prohibit the making of any loan
or advance to the Borrower by any of the Restricted Subsidiaries (including any
advance of the Net Cash Proceeds from any sale of Divestiture Assets, including,
without limitation, the Net Cash Proceeds of the Proposed Sale of MagneTek
Controls).
ARTICLE II - GENERAL
2.1 REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter
into this Amendment, the Borrower represents and warrants to the Agents and the
Banks that the representations and warranties contained in Sections 4.1, 4.2,
4.3, 4.8, 4.9, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.19 and 4.20 of the Loan
Agreement are true and correct as of the date hereof as though such
representations and warranties were made on the date hereof.
-2-
2.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this Amendment when taken together will be deemed to be but one
and the same Amendment.
2.3 EFFECTIVENESS. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of counterparts of this Amendment executed
by the Borrower and by the Majority Banks (whether on the same or different
counterparts). Upon receipt by the Administrative Agent of the foregoing, this
Amendment shall become effective as of the date hereof and the Administrative
Agent shall so inform all of the parties hereto.
2.4 REAFFIRMATION. As herein amended or modified, the Loan Agreement
shall remain in full force and effect and is hereby ratified, approved and
confirmed in all respects.
2.5 DEFINITIONS. Terms used but not otherwise defined herein are
used herein as defined in the Loan Agreement. On and after the effective date
hereof, each reference in the Loan Agreement and the related documents to "Loan
Agreement," "this Agreement" or words of like import, shall unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended hereby.
2.6 COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
fees and out-of-pocket costs and expenses of McDermott, Will & Emery as counsel
to the Administrative Agent in connection with the preparation of this
Amendment, all pursuant to itemized statement(s) to be submitted to the Borrower
by McDermott, Will & Emery.
2.7 BINDING AGREEMENT. This Amendment shall be binding upon the
Borrower, the Banks and the Agents and the respective successors and assigns of
the Banks and the Agents.
* * *
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWER:
MAGNETEK, INC.
By: /s/ John P. Colling, Jr.
-------------------------------
Name: John P. Colling, Jr.
Title: Vice President and
Treasurer
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Yvonne C. Dennis
-------------------------------
Name: Yvonne C. Dennis
Title: Vice President
CONTINENTAL BANK N.A., as a Bank
By: /s/ Wyatt Ritchie
-------------------------------
Name: Wyatt Ritchie
Title: Vice President
CIBC INC., as a Bank
By: /s/ Paul J. Chakmak
-------------------------------
Name: Paul J. Chakmak
Title: Vice President
NATIONAL CITY BANK, as a Bank
By:
-------------------------------
Name:
Title:
-4-
NATIONSBANK OF TEXAS, N.A., as a
Bank
By: /s/ Andrea Collias
-------------------------------
Name: Andrea Collias
Title: Assistant Vice President
THE BANK OF NEW YORK, as a Bank
By: /s/ Craig Rethmeyer
-------------------------------
Name: Craig Rethmeyer
Title: Vice President
CHEMICAL BANK, as a Bank
By: /s/ Elaine D. Grant
-------------------------------
Name: Elaine D. Grant
Title: Vice President
THE BANK OF CALIFORNIA, N.A., as a
Bank
By: /s/ Scott Lane
-------------------------------
Name: Scott Lane
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By: /s/ Genichi Imai
-------------------------------
Name: Gnichi Imai
Title: Joint General Manager
-6-
FIFTH AMENDMENT AND LIMITED WAIVER
Dated as of September 12, 1994
To
LOAN AGREEMENT
Dated as of April 28, 1993
This FIFTH AMENDMENT AND LIMITED WAIVER dated as of September 12, 1994
(this "Amendment") is entered into by and among MagneTek, Inc., a Delaware
Corporation (the "Borrower"), each of the banks or financial institutions listed
below (collectively, the "Banks" and each individually, a "Bank") and Bank of
America Illinois (formerly known as Continental Bank), as Administrative Agent
and Bank of America National Trust and Savings Association, as Arranging Agent
(collectively the "Agents").
WHEREAS, the Borrower has entered into a Loan Agreement, dated as of
April 28, 1993, by and among the Borrower, the Banks and the Agents, as amended
(the "Loan Agreement");
WHEREAS, the Borrower now desires that each of the Banks (i) amend the
Loan Agreement so as to reduce the Commitment and amend Schedule 1.1A, and (ii)
waive a condition precedent under the Loan Agreement so as to permit the Banks
to make Advances under the Loan Agreement despite the existence of a Default or
Event of Default.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I - AMENDMENT AND LIMITED WAIVER
1.1 AMENDMENT. Pursuant to SECTION 2.6 of the Loan Agreement, the
Borrower hereby reduces permanently and irrevocably the Commitment from
$200,000,000 to $150,000,000, and the definition of Commitment is amended to
reflect such reduction. Schedule 1.1A to the Loan Agreement is amended by
substituting a new Schedule 1.1A which is attached hereto as EXHIBIT A.
1.2 LIMITED WAIVER. In connection with the making of an Advance,
the Banks hereby waive through September 30, 1994, only, the condition of
Section 8.2 of the Loan Agreement that the
representations and warranties contained in Section 4.12 of the Loan Agreement
be true and correct as of the date of such Advance, it being understood that
such limited waiver is not to be considered a waiver generally or for any other
purpose or for any period after September 30, 1994. The limited waiver granted
hereby does not constitute a waiver of any Default or Event of Default existing
on the date of this Amendment, including, without limitation as described in
SECTION 2.1 hereof. The Banks hereby expressly reserve all rights and remedies
in law, equity or pursuant to the Loan Agreement they have as a consequence of
such Defaults or Events of Default. Upon the expiration of this limited waiver,
the Banks may exercise any of their rights, remedies, powers or privileges under
the Loan Agreement without limitation, including declaring an Event of Default
based upon the Borrower's failure to thereafter be in compliance with such
provisions as in effect prior to the modification set forth herein.
ARTICLE II - GENERAL
2.1 REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter
into this Amendment, the Borrower (i) represents and warrants to the Agents and
the Banks that the representations and warranties contained in Sections 4.1,
4.2, 4.3, 4.8, 4.9, 4.11, 4.13, 4.14, 4.15, 4.16, 4.19 and 4.20 of the Loan
Agreement are true and correct as of the date hereof as though such
representations and warranties were made on the date hereof, and (ii)
acknowledges that a Default exists by reason of the Borrower's failure be in
compliance with SECTIONS 6.16 and 6.17 of the Loan Agreement.
2.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this Amendment when taken together will be deemed to be but one
and the same Amendment.
2.3 EFFECTIVENESS. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of counterparts of this Amendment executed
by the Borrower and by the Majority Banks (whether on the same or different
counterparts). Upon receipt by the Administrative Agent of the foregoing, this
Amendment shall become effective as of the date
-2-
hereof and the Administrative Agent shall so inform all of the parties hereto.
2.4 REAFFIRMATION. As herein modified, the Loan Agreement shall
remain in full force and effect and is hereby ratified, approved and confirmed
in all respects.
2.5 DEFINITIONS. Terms used but not otherwise defined herein are
used herein as defined in the Loan Agreement. On and after the effective date
hereof, each reference in the Loan Agreement and the related documents to "Loan
Agreement," "this Agreement" or words of like import, shall unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended hereby.
2.6 COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
fees and out-of-pocket costs and expenses of McDermott, Will & Emery as counsel
to the Administrative Agent in connection with the preparation of this
Amendment, all pursuant to itemized statement(s) to be submitted to the Borrower
by McDermott, Will & Emery.
2.7 BINDING AGREEMENT. This Amendment shall be binding upon the
Borrower, the Banks and the Agents and the respective successors and assigns of
the Banks and the Agents.
* * *
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BORROWER:
MAGNETEK, INC.
By:_______________________________
Name:
Title:
AGENT:
BANK OF AMERICA ILLINOIS, as Administrative Agent
By:_______________________________
Name:
Title:
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:_______________________________
Name:
Title:
BANK OF AMERICA ILLINOIS, as a Bank
By:_______________________________
Name:
Title:
-4-
CIBC INC., as a Bank
By:_______________________________
Name:
Title:
NATIONAL CITY BANK, as a Bank
By: ______________________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A., as a
Bank
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By:_______________________________
Name:
Title:
CHEMICAL BANK, as a Bank
By:_______________________________
Name:
Title:
-5-
THE BANK OF CALIFORNIA, N.A., as a
Bank
By:_______________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By:_______________________________
Name:
Title:
-6-
Exhibit A to Fifth
Amendment and Waiver
Schedule 1.1A
to Loan Agreement
Bank Commitments
----------------
COMMITMENT PRO RATA
BANK AMOUNT SHARE
- - ----------------------------------------------------------------------------
Bank of America National
Trust and Savings Association $ 20,625,000 13.7500%
- - ----------------------------------------------------------------------------
Bank of America Illinois 20,625,000 13.7500%
- - ----------------------------------------------------------------------------
CIBC Inc. 18,750,000 12.5000%
- - ----------------------------------------------------------------------------
National City Bank 18,750,000 12.5000%
- - ----------------------------------------------------------------------------
NationsBank of Texas, N.A. 18,750,000 12.5000%
- - ----------------------------------------------------------------------------
The Bank of New York 18,750,000 12.5000%
- - ----------------------------------------------------------------------------
Chemical Bank 11,250,000 7.5000%
- - ----------------------------------------------------------------------------
The Bank of California, N.A. 11,250,000 7.5000%
- - ----------------------------------------------------------------------------
The Long Term Credit Bank of
Japan, Ltd. 11,250,000 7.5000%
------------ --------
- - ----------------------------------------------------------------------------
Total Commitment $150,000,000 100.0000%
- - ----------------------------------------------------------------------------
- - ----------------------------------------------------------------------------
-7-
SIXTH AMENDMENT AND WAIVER
Dated as of September 29, 1994
To
LOAN AGREEMENT
Dated as of April 28, 1993
This SIXTH AMENDMENT AND WAIVER dated as of September 29, 1994 (this
"Amendment") is entered into by and among MagneTek, Inc., a Delaware Corporation
(the "Borrower"), each of the banks or financial institutions listed below
(collectively, the "Banks" and each individually, a "Bank") and Bank of America
Illinois (formerly known as Continental Bank), as Administrative Agent (the
"Administrative Agent") and Bank of America National Trust and Savings
Association, as Arranging Agent (together with the Administrative Agent, the
"Agents").
WHEREAS, the Borrower has entered into a Loan Agreement, dated as of
April 28, 1993, by and among the Borrower, the Banks and the Agents, as amended
(the "Loan Agreement");
WHEREAS, the capital stock of the Guarantors (the "Pledged
Collateral") is pledged to the Collateral Agent for the benefit of the
Benefitted Parties (as defined in the Intercreditor Agreement) including but not
limited to the Banks and such Guarantors have also issued Subsidiary Guaranties
to the Collateral Agent for the benefit of the Benefitted Parties;
WHEREAS, the Borrower intends to enter into agreements pursuant to
which it will sell the Pledged Collateral of certain of the Guarantors and the
Borrower desires that such Pledged Collateral and certain Subsidiary Guaranties
be released to allow for such sales;
WHEREAS, the Borrower now desires that each of the Banks (i) amend the
Loan Agreement in certain respects, and (ii) release certain Pledged Collateral
and Subsidiary Guaranties of the Guarantors upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I - AMENDMENTS
1.1 ADDITIONAL DEFINITIONS. Section 1 of the Loan Agreement is
amended by adding the following definitions in alphabetical order:
"EBITDA" means, with respect to any fiscal period, Net Income for such
fiscal period, PLUS (a) Interest Charges of Borrower and its Restricted
Subsidiaries, PLUS (b) taxes on or measured by net income of Borrower and
its Restricted Subsidiaries, PLUS (c) depreciation of Borrower and its
Restricted Subsidiaries, PLUS (d) amortization of Borrower and its
Restricted Subsidiaries, in each case as charged against revenues to arrive
at Net Income for such fiscal period; PROVIDED that, for purposes of the
foregoing (i) Net Income for any Fiscal Quarter during which Borrower
purchased or redeemed any Indebtedness at a premium over the face amount
thereof shall be adjusted by adding back the amount of such premium (but
not in excess of $10,000,000 for all Fiscal Quarters after the Closing Date
in the aggregate) and (ii) EBITDA for the Fiscal Quarter ending September
30, 1994 and thereafter shall be calculated based solely on continuing
operations in accordance with GAAP. Notwithstanding any provision in the
Loan Agreement to the contrary, EBITDA (i) for the Fiscal Quarter ending
June 30, 1994, shall be based solely on the period consisting of the two
consecutive Fiscal Quarters ending June 30, 1994 taken as a single fiscal
period, (ii) for the Fiscal Quarter ending September 30, 1994 shall be
based solely on the period consisting of three consecutive fiscal quarters
ending September 30, 1994 taken as a single fiscal period, and (iii) for
any Fiscal Quarter ending on or after December 31, 1994 shall be based on
the period consisting of the four consecutive Fiscal Quarters then ending,
taken as a single fiscal period.
"FUNDED DEBT/EBITDA RATIO" means, as of the last day of any Fiscal Quarter
(INCLUDING the last day of a Fiscal Quarter which is also the last day of a
Fiscal Year), the RATIO of (a) Funded Debt for the Fiscal Quarter then
ended to (b) EBITDA for the fiscal period consisting of that Fiscal Quarter
and the three immediately preceding Fiscal Quarters; PROVIDED, that if
EBITDA is based on any fiscal period consisting of less than four (4)
Fiscal Quarters, EBITDA shall be annualized by multiplying EBITDA by a
fraction the
-2-
numerator of which is 4 and the denominator of which is the number of
Fiscal Quarters in such fiscal period.
1.2 AMENDMENT TO DEFINITIONS. The following definitions are hereby
amended to read in their entirety as follows:
"APPLICABLE ALTERNATE BASE RATE MARGIN" means, for each Pricing Period, the
interest rate set forth below (expressed in basis points) opposite the
Funded Debt/EBITDA Ratio as of the last day of the Related Fiscal Quarter:
Funded Debt/EBITDA Ratio Margin
------------------------ ------
Less than 2.0 to 1 0.0
2.0 to 1 or greater,
but less than 3.0 to 1 12.5
3.0 to 1 or greater,
but less than 4.0 to 1 25.0
4.0 to 1 or greater,
but less than 5.0 to 1 50.0
5.0 to 1 or greater 75.0
PROVIDED, however, that if on such last day of the Related Fiscal Quarter
an Event of Default existed and the Event of Default continues to exist on
the first day of the Pricing Period, then the Applicable Alternate Base
Rate Margin shall be the HIGHER of (a) the interest rate set forth above
opposite the Funded Debt/EBITDA Ratio for the Related Fiscal Quarter or (b)
the interest rate in effect for the immediately preceding Pricing Period.
"APPLICABLE CD RATE MARGIN" means, for each Pricing Period, the interest
rate set forth below (expressed in basis points) opposite the Funded
Debt/EBITDA Ratio as of the last day of the Related Fiscal Quarter:
Funded Debt/EBITDA Ratio Margin
------------------------ ------
Less than 2.0 to 1 137.5
-3-
2.0 to 1 or greater,
but less than 3.0 to 1 150.0
3.0 to 1 or greater,
but less than 4.0 to 1 162.5
4.0 to 1 or greater,
but less than 5.0 to 1 187.5
5.0 to 1 or greater 212.5
PROVIDED, however, that if on such last day of the Related Fiscal Quarter
an Event of Default existed and the Event of Default continues to exist on
the first day of the Pricing Period, then the Applicable CD Rate Margin
shall be the HIGHER of (a) the interest rate set forth above opposite the
Funded Debt/EBITDA Ratio for the Related Fiscal Quarter or (b) the interest
rate in effect for the immediately preceding Pricing Period.
"APPLICABLE EURODOLLAR RATE MARGIN" means, for each Pricing Period, the
interest rate set forth below (expressed in basis points) opposite the
Funded Debt/EBITDA Ratio as of the last day of the Related Fiscal Quarter:
Funded Debt/EBITDA Ratio Margin
------------------------ ------
Less than 2.0 to 1 100.0
2.0 to 1 or greater,
but less than 3.0 to 1 125.0
3.0 to 1 or greater,
but less than 4.0 to 1 150.0
4.0 to 1 or greater,
but less than 5.0 to 1 175.0
5.0 to 1 or greater 200.0
PROVIDED, however, that if on such last day of the Related Fiscal Quarter
an Event of Default existed and the Event of Default continues to exist on
the first day of the Pricing Period, then the Applicable Eurodollar Rate
Margin shall be
-4-
the HIGHER of (a) the interest rate set forth above opposite the Funded
Debt/EBITDA Ratio for the Related Fiscal Quarter or (b) the interest rate
in effect for the immediately preceding Pricing Period.
"APPLICABLE FINANCIAL SLC FEE RATE" means, for each Pricing Period, the
standby letter of credit fee rate set forth below (expressed in basis
points) opposite the Funded Debt/EBITDA Ratio as of the last day of the
Related Fiscal Quarter:
Funded Debt/EBITDA Ratio Margin
------------------------ ------
Less than 2.0 to 1 100.0
2.0 to 1 or greater,
but less than 3.0 to 1 125.0
3.0 to 1 or greater,
but less than 4.0 to 1 150.0
4.0 to 1 or greater,
but less than 5.0 to 1 175.0
5.0 to 1 or greater 200.0
PROVIDED, however, that if on such last day of the Related Fiscal Quarter
an Event of Default existed and the Event of Default continues to exist on
the first day of the Pricing Period, then the Applicable Financial SLC Fee
Rate shall be the HIGHER of (a) the fee rate set forth above opposite the
Funded Debt/EBITDA Ratio for the Related Fiscal Quarter or (b) the fee rate
in effect for the immediately preceding Pricing Period.
"APPLICABLE PERFORMANCE SLC FEE RATE" means, for each Pricing Period, the
standby letter of credit fee rate set forth below (expressed in basis
points) opposite the Funded Debt/EBITDA Ratio as of the last day of the
Related Fiscal Quarter:
Funded Debt/EBITDA Ratio Margin
------------------------ ------
Less than 2.0 to 1 87.5
-5-
2.0 to 1 or greater,
but less than 3.0 to 1 112.5
3.0 to 1 or greater,
but less than 4.0 to 1 125.0
4.0 to 1 or greater,
but less than 5.0 to 1 137.5
5.0 to 1 or greater 162.5
PROVIDED, however, that if on such last day of the Related Fiscal Quarter
an Event of Default existed and the Event of Default continues to exist on
the first day of the Pricing Period, then the Applicable Performance SLC
Fee Rate shall be the HIGHER of (a) the fee rate set forth above opposite
the Funded Debt/EBITDA Ratio for the Related Fiscal Quarter or (b) the fee
rate in effect for the immediately preceding Pricing Period.
"EBIT" means, with respect to any fiscal period, Net Income for such fiscal
period, PLUS (a) Interest Charges of Borrower and its Restricted
Subsidiaries, PLUS (b) taxes on or measured by net income of Borrower and
its Restricted Subsidiaries, in each case as charged against revenues to
arrive at Net Income for such fiscal period; PROVIDED that, for purposes of
the foregoing (i) Net Income for any Fiscal Quarter during which Borrower
purchased or redeemed any Indebtedness at a premium over the face amount
thereof shall be adjusted by adding back the amount of such premium (but
not in excess of $10,000,000 for all Fiscal Quarters after the Closing Date
in the aggregate) and (ii) EBIT for the Fiscal Quarter ending September 30,
1994 and thereafter shall be calculated based solely on continuing
operations in accordance with GAAP. Notwithstanding any provision in the
Loan Agreement to the contrary, EBIT (i) for the Fiscal Quarter ending June
30, 1994, shall be based solely on the period consisting of the two
consecutive Fiscal Quarters ending June 30, 1994 taken as a single fiscal
period, (ii) for the Fiscal Quarter ending September 30, 1994 shall be
based solely on the period consisting of three consecutive fiscal quarters
ending September 30, 1994 taken as a single fiscal period, and (iii) for
any Fiscal Quarter ending on or after December 31, 1994 shall be based on
the period
-6-
consisting of the four consecutive Fiscal Quarters then ending, taken as a
single fiscal period.
"PRICING PERIOD" means, with respect to any Fiscal Quarter, the three (3)
calendar month period commencing two (2) months after the end of such
Fiscal Quarter; PROVIDED, HOWEVER, that with respect to the Fiscal Quarter
ending June 30, 1994, Pricing Period means the two (2) calendar month
period commencing September 30, 1994.
1.3 AMENDMENT OF CERTAIN FINANCIAL COVENANTS. Sections 6.15, 6.16
and 6.17 of the Loan Agreement are amended to read in their entirety as follows:
6.15 LEVERAGE RATIO. Permit the Leverage Ratio, as of the last day
of each Fiscal Quarter ending during a period or at the date described
below, to be greater than the ratio set forth opposite such period or date:
Period Ratio
------ -----
Closing Date through June 29, 1993 .82 to 1.00
June 30, 1993 through December 31, .80 to 1.00
1994
March 31, 1994 .88 to 1.00
June 30, 1994 .85 to 1.00
September 30, 1994 .88 to 1.00
December 31, 1994 .81 to 1.00
March 31, 1995 .76 to 1.00
June 30, 1995 .74 to 1.00
September 30, 1995 and thereafter .65 to 1.00
6.16 INTEREST CHARGE COVERAGE. Permit Interest Charge Coverage, as
of the last day of each Fiscal Quarter ending
-7-
during a period described below, to be less than the ratio set forth
opposite such period:
Period Ratio
------ -----
Closing Date through June 30, 1993 2.20 to 1.00
September 30, 1993 2.30 to 1.00
December 31, 1993 1.40 to 1.00
March 31, 1994 1.00 to 1.00
June 30, 1994 1.20 to 1.00
September 30, 1994 .93 to 1.00
December 31, 1994 .98 to 1.00
March 31, 1995 1.25 to 1.00
June 30, 1995 1.84 to 1.00
September 30, 1995 and thereafter 2.00 to 1.00
it being understood that the foregoing ratio shall be calculated using all
Interest Charges for both continuing and discontinued operations.
6.17 FIXED CHARGE COVERAGE. Permit the Fixed Charge Coverage, as of
the last day of each Fiscal Quarter ending during a period described below,
to be less than the ratio set forth opposite such period:
Period Ratio
------ -----
Closing Date through June 30, 1993 1.80 to 1.00
September 30, 1993 1.35 to 1.00
December 31, 1993 0.78 to 1.00
March 31, 1994 0.95 to 1.00
June 30, 1994 1.10 to 1.00
-8-
September 30, 1994 .91 to 1.00
December 31, 1994 .91 to 1.00
March 31, 1995 1.02 to 1.00
June 30, 1995 1.45 to 1.00
September 30, 1995 and thereafter 1.50 to 1.00
it being understood that the foregoing ratio shall be calculated using all
Interest Charges for both continuing and discontinued operations.
1.4 AMENDMENT OF ADDITIONAL COVENANT. Section 5.13 of the Loan
Agreement is amended to read in its entirety as follows:
5.13 CASH CONSIDERATION. As soon as reasonably practicable following
receipt by the Borrower of any cash consideration from the Divestiture
Assets, apply such cash consideration as follows:
(a) The first $22,500,000 of cash consideration from Divestiture
Assets received after September 29, 1994 shall be used to repay the Notes;
(b) At least 50% of cash consideration from Divestiture Assets
received thereafter shall be used to repay the Notes and, notwithstanding
any restriction in Section 6.1 of the Loan Agreement, the remaining cash
consideration from Divestiture Assets shall be used to repurchase the
Senior Notes;
(c) Concurrent with each repayment of the Notes provided for above,
the Commitment shall permanently and irrevocably be reduced by the amount
of such repayment; PROVIDED that the Commitment shall not be reduced below
$100,000,000. Upon such reduction of the Commitment (i) the definition of
Commitment shall automatically be amended to reflect such reduction, (ii)
Schedule 1.1A to the Loan Agreement shall be amended to reflect a pro rata
reduction in each Bank's portion of the Commitment and (iii) the
Administrative Agent shall promptly thereafter distribute a revised
Schedule 1.1A to each of the Banks and the Company.
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(d) Notwithstanding the foregoing, if at the time of such repayment
the amount due under the Notes is reduced to zero the Borrower shall not be
required to further repay the Notes and the remaining cash consideration
from Divestiture Assets shall be used to repurchase the Senior Notes;
PROVIDED, HOWEVER, that the Commitment shall still be permanently and
irrevocably reduced by 50% of the cash consideration from such Divestiture
Assets, but in no event shall the Commitment be reduced below $100,000,000
1.5 ADDITION OF NEW COVENANT. The following new Section 6.20 is
hereby added to the Loan Agreement, as follows:
6.20 PREPAYMENT OF SENIOR NOTES. Make any redemption or other
prepayment on the Senior Notes or make any payment or deposit with any
Person that has the effect of providing for the satisfaction of all or any
portion of the Senior Notes ("Senior Note Prepayment") other than (i) a
scheduled payment or (ii) as provided in Section 5.13 of the Loan
Agreement; PROVIDED that, notwithstanding Section 5.9 of the Loan
Agreement, the Borrower may use proceeds of the Loans to make a Senior Note
Prepayment if and only if each of the following conditions is satisfied:
(a) immediately prior to such Senior Note Prepayment no Loans are
outstanding under the Loan Agreement;
(b) the Interest Charge Coverage as of the last day of the Fiscal
Quarter preceding such Senior Note Prepayment, is not less than the ratio
applicable to such Fiscal Quarter, as follows:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1994 1.50 to 1.00
March 31, 1995 and thereafter 2.25 to 1.00
it being understood that solely for purposes of this Section 6.20, Interest
Charge Coverage shall be calculated for the fiscal period consisting solely
of such Fiscal Quarter; and
(c) the Leverage Ratio, as of the last day of the Fiscal Quarter
preceding such Senior Note Prepayment, is not
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greater than the ratio applicable to such Fiscal Quarter, as follows:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1994 .73 to 1.00
March 31, 1995 and thereafter .70 to 1.00;
1.6 AMENDMENT OF FINANCIAL AND BUSINESS INFORMATION. Section 7.1(b)
of the Loan Agreement is amended to read in its entirety as follows:
(b) As soon as practicable, and in any event within 45 days after the
end of the fourth Fiscal Quarter in a Fiscal Year, a Certificate of a
Responsible Official setting forth the Funded Debt/EBITDA Ratio as of the
last day of such Fiscal Quarter, and providing reasonable detail as to the
calculation thereof, which calculation shall be based on the preliminary
unaudited financial statements of Borrower and its Subsidiaries for such
Fiscal Quarter;
ARTICLE II - WAIVERS AND CONSENTS
In reliance on the Borrower's representations and warranties set forth
in SECTION 3.2 below, as of the date hereof the Banks hereby:
2.1 WAIVER OF COVENANTS. Waive compliance by the Borrower with the
Leverage Ratio, Interest Charge Coverage and Fixed Charge Coverage covenants set
forth in Sections 6.15, 6.16 and 6.17, respectively, of the Loan Agreement for
the Fiscal Quarter ending June 30, 1994. The waiver set forth in this SECTION
2.1 relates solely to the Fiscal Quarter ending June 30, 1994 and does not
constitute a waiver of such covenants for any subsequent period, or a waiver of
any other term or conditions under the Loan Agreement.
2.2 DISPOSITION OF PROPERTY. (a) Waive the requirements of Section
6.3 of the Loan Agreement to the extent necessary to permit the following:
(i) the proposed sale of all of the capital stock or all or
substantially all of the assets of MagneTek Electric,
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Inc. owned by the Borrower; PROVIDED, HOWEVER, that this waiver shall only
apply to the extent that the cash consideration generated from such sale
shall be equal to or greater than $80,000,000;
(ii) the proposed sale of the Power Technology Group, including all
of the capital stock or all or substantially all of the assets of MagneTek
Power Technology Systems, Inc. owned by the Borrower; PROVIDED, HOWEVER,
that this waiver shall only apply to the extent that the cash consideration
generated from such sale shall be equal to or greater than $25,000,000;
(iii) the proposed sale of all of the capital stock or all or
substantially all of the assets of MagneTek National Electric Coil, Inc.
owned by the Borrower; PROVIDED, HOWEVER, that this waiver shall only apply
to the extent that the cash consideration generated from such sale shall be
equal to or greater than $20,000,000; and
(iv) the proposed sale of all of the capital stock or all or
substantially all of the assets of The Ohio Transformer Corporation owned
by the Borrower; PROVIDED, HOWEVER, that this waiver shall only apply to
the extent that the cash consideration generated from such sale shall be
equal to or greater than $5,000,000;
it being understood that the Borrower shall deliver to the Administrative
Agent and each Bank notice of any such sales within two business days
thereof, which notice shall include (i) the date of such sale, (ii) the
specific assets sold, (iii) the cash consideration generated from such
sale, (iv) the application of such cash consideration, and (v) such other
information as the Administrative Agent or any Bank may reasonably request.
(b) Agree that the cash consideration generated from such sales shall be
excluded from the calculation in Section 6.3(a)(ii) of the Loan Agreement.
2.3 CONSENT TO RELEASE OF SUBSIDIARY GUARANTIES AND PLEDGED
COLLATERAL. (a) In accordance with Section 11.2(c) of the Loan Agreement, but
subject to receipt by the Agent of assurances satisfactory to it that the
holders of the Senior Notes have consented to the release of the Subsidiary
Guaranties and the Pledged Collateral, the Banks hereby consent to the
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release of the Subsidiary Guaranties and the Pledged Collateral to the extent
required to permit the proposed sales referred to in SECTION 2.2 hereof; it
being understood that with respect to each such proposed sale: (i) such consent
to release shall apply to the extent the related waiver under SECTION 2.2 hereof
is then in effect; and (ii) such consent to release is subject to the condition
that concurrently with such release the Administrative Agent shall have directly
received from the related purchaser the portion of cash consideration related
thereto which are required to be applied to reduce the Notes pursuant to Section
5.13 of the Loan Agreement; PROVIDED, that such proceeds must be received by the
Administrative Agent by 3:00 p.m., Chicago time, on the date of such release.
(b) Concurrently with such release the Commitment shall be reduced in
accordance with Section 5.13 of the Loan Agreement and the Administrative Agent
shall deliver to the Borrower or its designee the Pledged Collateral which is
the subject of such release.
ARTICLE III - GENERAL
3.1 AMENDMENT FEE. Concurrent with the effectiveness of this
Amendment, the Borrower agrees to pay to the Administrative Agent, for the
respective accounts of the Banks, pro rata according to their Pro Rata Share of
the Commitment, in immediately available funds, an amendment fee equal to 0.15%
of the Commitment.
3.2 REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter
into this Amendment, the Borrower represents and warrants to the Agents and the
Banks that (a) the representations and warranties contained in Sections 4.1,
4.2, 4.3, 4.8, 4.9, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.19 and 4.20 of the
Loan Agreement are true and correct as of the date hereof as though such
representations and warranties were made on the date hereof and (b) the holders
of the Senior Notes have consented to the release of the Subsidiary Guaranties
and the Pledged Collateral.
3.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this Amendment when taken together will be deemed to be but one
and the same Amendment.
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3.4 EFFECTIVENESS. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of counterparts of this Amendment executed
by the Borrower and by all of the Banks (whether on the same or different
counterparts). Upon receipt by the Administrative Agent of the foregoing, this
Amendment shall become effective as of the date hereof and the Administrative
Agent shall so inform all of the parties hereto.
3.5 REAFFIRMATION. As herein modified, the Loan Agreement shall
remain in full force and effect and is hereby ratified, approved and confirmed
in all respects.
3.6 DEFINITIONS. Terms used but not otherwise defined herein are
used herein as defined in the Loan Agreement. On and after the effective date
hereof, each reference in the Loan Agreement and the related documents to "Loan
Agreement," "this Agreement" or words of like import, shall unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended hereby.
3.7 COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
fees and out-of-pocket costs and expenses of McDermott, Will & Emery as counsel
to the Administrative Agent in connection with the preparation of this
Amendment, all pursuant to itemized statement(s) to be submitted to the Borrower
by McDermott, Will & Emery.
3.8 BINDING AGREEMENT. This Amendment shall be binding upon the
Borrower, the Banks and the Agents and the respective successors and assigns of
the Banks and the Agents.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BORROWER:
MAGNETEK, INC.
By:_______________________________
Name:
Title:
AGENT:
BANK OF AMERICA ILLINOIS, as Administrative Agent
By:_______________________________
Name:
Title:
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:_______________________________
Name:
Title:
BANK OF AMERICA ILLINOIS, as a Bank
By:_______________________________
Name:
Title:
CIBC INC., as a Bank
By: ______________________________
Name:
Title:
NATIONAL CITY BANK, as a Bank
By: ______________________________
Name:
Title:
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NATIONSBANK OF TEXAS, N.A., as a
Bank
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By:_______________________________
Name:
Title:
CHEMICAL BANK, as a Bank
By:_______________________________
Name:
Title:
THE BANK OF CALIFORNIA, N.A., as a
Bank
By:_______________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By:_______________________________
Name:
Title:
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