EXHIBIT 10.39
THIRD AMENDMENT TO CREDIT AGREEMENT
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THIS AMENDMENT is entered into effective as of May 15, 1996, between
MAGNETEK, INC., a Delaware corporation ("BORROWER"), certain Lenders,
NATIONSBANK OF TEXAS, N.A. ("AGENT"), as Agent for Lenders, and CIBC INC., THE
FIRST NATIONAL BANK OF CHICAGO, and LTCB TRUST COMPANY as Co-Agents for Lenders.
Borrower, Agent, Co-Agents, and certain Lenders are party to the Credit
Agreement (as renewed, extended, and amended, the "CREDIT AGREEMENT") dated as
of March 31, 1995, providing for a $200,000,000 revolving credit facility and a
$75,000,000 term loan that has been repaid. Borrower, Agent, and Lenders have
agreed, upon the following terms and conditions, to amend the Credit Agreement
to provide for, among other things, a change to the calculation of the Borrowing
Base. Accordingly, for adequate and sufficient consideration, Borrower, Agent,
and Lenders agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this amendment (a)
terms defined in the Credit Agreement have the same meanings when used in this
amendment and (b) references to "SECTIONS," "SCHEDULES," and "EXHIBITS" are to
the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is amended as
follows effective as of the date of this amendment.
(a) SECTION 1 is amended by deleting the terms "RELEASE RATINGS" and
"RELEASE RATIO" and by entirely amending the following term:
BORROWING BASE MEANS, AT ANY TIME, THE SUM OF (a) 80% OF ELIGIBLE
ACCOUNTS PLUS (b) THE LESSER OF (i) 40% OF ELIGIBLE INVENTORY OR
(ii) $100,000,000.
(b) SECTION 14.8(b) is entirely amended as follows:
(b) ALL LENDERS. EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED IN
THIS SECTION 14.8, ANY AMENDMENT TO OR CONSENT OR WAIVER UNDER THIS
AGREEMENT OR ANY LOAN DOCUMENT THAT PURPORTS TO ACCOMPLISH ANY OF THE
FOLLOWING MUST BE BY AN INSTRUMENT IN WRITING EXECUTED BY BORROWER AND
AGENT AND EXECUTED (OR APPROVED, AS THE CASE MAY BE) BY EACH LENDER:
(i) EXTENDS THE DUE DATE OR DECREASES THE AMOUNT OF ANY SCHEDULED
PAYMENT OR AMORTIZATION OF THE OBLIGATION BEYOND THE DATE SPECIFIED IN
THE LOAN DOCUMENTS; (ii) DECREASES ANY RATE OR AMOUNT OF INTEREST,
FEES, OR OTHER SUMS PAYABLE TO AGENT OR LENDERS UNDER THIS AGREEMENT
(EXCEPT SUCH REDUCTIONS AS ARE CONTEMPLATED BY THIS AGREEMENT); (iii)
CHANGES THE DEFINITION OF "COMMITMENT," "COMMITMENT PERCENTAGE,"
"DETERMINING LENDERS," OR "PRO RATA PART," OR INCREASES IN THE
PERCENTAGES IN THE DEFINITION OF "BORROWING BASE;" (iv) INCREASES ANY
ONE OR MORE LENDERS' COMMITMENT; (v) WAIVES COMPLIANCE WITH, AMENDS,
OR FULLY OR PARTIALLY
RELEASES -- EXCEPT AS EXPRESSLY PROVIDED BY SECTION 5.5 OR ANY OTHER
LOAN DOCUMENTS OR FOR WHEN A COMPANY MERGES INTO ANOTHER PERSON OR
DISSOLVES WHEN SPECIFICALLY PERMITTED IN THE LOAN DOCUMENTS -- ANY
GUARANTY OR COLLATERAL; OR (vi) CHANGES THIS CLAUSE (b) OR ANY OTHER
MATTER SPECIFICALLY REQUIRING THE CONSENT OF ALL LENDERS UNDER THIS
AGREEMENT.
(c) EXHIBIT D-4 IS ENTIRELY AMENDED IN THE FORM OF -- AND ALL
REFERENCES IN THE CREDIT AGREEMENT TO EXHIBIT D-4 ARE CHANGED TO -- THE ATTACHED
AMENDED EXHIBIT D-4.
3. CONDITIONS PRECEDENT. PARAGRAPH 2 above is not effective until Agent
receives counterparts of this amendment executed by Borrower, each Restricted
Company, and each Lender.
4. RATIFICATIONS. Borrower (a) ratifies and confirms all provisions of
the Loan Documents as amended by this amendment, (b) ratifies and confirms that
all guaranties, assurances, and Liens granted, conveyed, or assigned to Agent
under the Loan Documents are not released, reduced, or otherwise adversely
affected by this amendment and continue to guarantee, assure, and secure full
payment and performance of the present and future Obligation, and (c) agrees to
perform such acts and duly authorize, execute, acknowledge, deliver, file, and
record such additional documents and certificates as Agent may request in order
to create, perfect, preserve, and protect those guaranties, assurances, and
Liens.
5. REPRESENTATIONS. Borrower represents and warrants to Agent and
Lenders that as of the date of this amendment (a) all representations and
warranties in the Loan Documents are true and correct in all material respects
EXCEPT to the extent that (i) any of them speak to a different specific date or
(ii) the facts on which any of them were based have been changed by transactions
contemplated or permitted by the Credit Agreement, and (b) no Material Adverse
Event, Default or Potential Default exists.
6. MISCELLANEOUS. All references in the Loan Documents to the "CREDIT
AGREEMENT" refer to the Credit Agreement as amended by this amendment. This
amendment is a "LOAN DOCUMENT" referred to in the Credit Agreement, and the
provisions relating to Loan Documents in SECTIONS 1 and 14 of the Credit
Agreement are incorporated in this amendment by reference. Except as
specifically amended and modified in this amendment, the Credit Agreement is
unchanged and continues in full force and effect. This amendment may be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document. All counterparts must be construed
together to constitute one and the same instrument. This amendment binds and
inures to each of the undersigned and their respective successors and permitted
assigns, subject to the terms of the Credit Agreement. THIS AMENDMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
2
EXECUTED as of the date first stated above.
MAGNETEK, INC., NATIONSBANK OF TEXAS, N.A.,
as BORROWER as AGENT and a LENDER
By By
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John P. Colling, Jr., Vice President Michele M. Shafroth, Senior Vice
President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO, CIBC INC.,
as a CO-AGENT and a LENDER as a CO-AGENT and a LENDER
By By
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Name: Name:
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Title: Title:
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LTCB TRUST COMPANY,, FIRST UNION NATIONAL BANK OF
as a CO-AGENT and a LENDER TENNESSEE, as a LENDER
By By
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Name: Name:
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Title: Title:
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CREDIT LYONNAIS - CAYMAN ISLAND N.A., FLEET BANK OF MASSACHUSETTS,
BRANCH, as a LENDER as a LENDER
By By
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Name: Name:
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Title: Title:
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SOCIETE GENERALE, SOUTHWEST, UNION BANK OF CALIFORNIA, N.A.,
AGENCY, as a LENDER successor from the merger of Union Bank
and The Bank of California, N.A., as a
LENDER
By By
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Name: Name:
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Title: Title:
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ARAB BANKING CORPORATION,
as a LENDER
By
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Name:
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Title:
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Third Amendment Signature Page One of Two Pages
BANQUE FRANCAISE DU COMMERCE, THE BOATMEN'S NATIONAL BANK OF
EXTERIEUR, as a LENDER ST. LOUIS, as a LENDER
By By
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Name: Name:
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Title: Title:
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By By
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Name: Name:
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Title: Title:
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COMMERZBANK AG, ATLANTA AGENCY, CREDITANSTALT CORPORATE INC.,
FINANCE, as a LENDER as a LENDER
By By
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Name: Name:
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Title: Title:
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By By
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Name: Name:
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Title: Title:
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FIRST AMERICAN NATIONAL BANK,
as a LENDER
By
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Name:
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Title:
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To induce Agent to enter into this amendment, the undersigned consent and
agree (a) to its execution and delivery, (b) that this amendment in no way
releases, diminishes, impairs, reduces, or otherwise adversely affects any
Liens, guaranties, assurances, or other obligations or undertakings of any of
the undersigned under any Loan Documents, and (c) waive notice of acceptance of
this consent and agreement, which consent and agreement binds the undersigned
and their successors and permitted assigns and inures to Agent and their
respective successors and permitted assigns.
MAGNETEK CENTURY ELECTRIC, INC.,
MAGNETEK NATIONAL ELECTRIC COIL, INC.,
and MAGNETEK OHIO TRANSFORMER, INC.,
as GUARANTORS
By
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John Colling, Jr., Vice President and
Treasurer of all of the foregoing
companies
Third Amendment Signature Page Two of Two Pages