EXHIBIT 10.45
CONSENT AND AMENDMENT NO. 2 TO FORBEARANCE AGREEMENT
This CONSENT AND AMENDMENT NO. 2 TO FORBEARANCE AGREEMENT, dated as of
September 27, 2001 (this "Agreement"), is by and among (a) TransTechnology
Corporation ("TransTechnology"), TransTechnology Seeger-Orbis GmbH ("GmbH") and
TransTechnology (GB) Limited ("Limited", together with TransTechnology and GmbH,
the "Borrowers"), (b) Fleet National Bank ("FNB") and the other lending
institutions listed on Schedule 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Lenders"), (c) FNB, acting through its London
Branch, as Sterling Fronting Bank (the "Sterling Fronting Bank"), (d) BHF-BANK
Aktiengesellschaft, as DM Fronting Bank (the "DM Fronting Bank"; together with
the Sterling Fronting Bank, the "Fronting Banks"), (e) FNB, as issuing bank for
Letters of Credit (in such capacity, the "Issuing Bank"), and (f) FNB as
Administrative Agent for the Lenders, the Fronting Banks and the Issuing Bank
(in such capacity, the "Administrative Agent").
WHEREAS, the Borrowers, the Lenders, the Fronting Banks, the Issuing Bank,
ABN AMRO Bank N.V., as Syndication Agent, Bank One, NA, as Documentation Agent,
and the Administrative Agent are parties to that certain Second Amended and
Restated Credit Agreement dated as of June 30, 1995, and amended and restated as
of July 24, 1998, as further amended and restated as of August 31, 1999, as
amended by that certain Consent and Amendment Agreement No. 1 dated as of August
21, 2000, as further amended by that certain Amendment Agreement No. 2 dated as
of December 29, 2000, and as further amended by that certain Amendment Agreement
No. 3 dated as of January 31, 2001 (as so amended and restated, the "Credit
Agreement"). Capitalized terms used herein unless otherwise defined shall have
the respective meanings set forth in the Credit Agreement;
WHEREAS, pursuant to that certain Forbearance and Waiver Agreement dated
as of March 29, 2001, as amended by that certain Consent and Amendment to
Forbearance Agreement dated as of June 25, 2001 (as so amended, the "Forbearance
Agreement"), by and among the Borrowers, the Lenders, the Fronting Banks, and
the Administrative Agent, the Lenders and the Administrative Agent agreed to
forbear from (a) exercising their rights and remedies under the Credit Agreement
and the other Loan Documents to collect the indebtedness of the Borrowers to the
Administrative Agent and the Lenders under the Credit Agreement and the other
Loan Documents and (b) ceasing to make Revolving Credit Loans or International
Facility Loans or to issue, extend or renew Letters of Credit;
WHEREAS; pursuant to the terms of the Forbearance Agreement the
forbearance period will end on September 27, 2001;
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent extend such forbearance period;
WHEREAS, in accordance with Section 2 of the Forbearance Agreement, the
Borrowers have requested that the Lenders consent to the sale (the "Engineered
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Components Sale") of TransTechnology's Engineered Components business, which
consists of TransTechnology Engineered Components, LLC, TransTechnology Canada
Corporation and the Palnut Division of TransTechnology (collectively, the
"Engineered Components Assets"), to KTIN Acquisition, LLC (an entity formed by
Kohlberg Management IV, L.L.C., a private investment company located in Mt.
Kisco, New York); and
WHEREAS, the Lenders and the Administrative Agent are willing to extend
the forbearance period and consent to the Engineered Components Sale, but only
on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
SECTION 1. CONSENT TO ENGINEERED COMPONENTS SALE. Subject to the
satisfaction of the conditions contained in Section 3 hereof, the Lenders, the
Fronting Banks, and the Administrative Agent consent to the Engineered
Components Sale and consent to the release of the Administrative Agent's liens
on the Engineered Components Assets so long as (a) the Net Cash Proceeds
received by the Borrowers in connection with the Engineered Components Sale (the
"Engineered Components Sale Proceeds") are not less than One Hundred Fifteen
Million Dollars ($115,000,000), (b) all documents relating to the Engineered
Components Sale, including, but not limited to any fairness opinions issued in
connection with the Engineered Components Sale, shall be in form and substance
satisfactory to the Administrative Agent, (c) all Engineered Components Sale
Proceeds shall be applied immediately upon receipt to prepay the Revolving
Credit Loans, and (d) the Engineered Components Sale Proceeds are received not
later than October 19, 2001. The Borrowers, the Lenders, the Fronting Banks, and
the Administrative Agent hereby agree that upon the consummation of the
Engineered Components Sale the Total Revolving Credit Commitment shall be
reduced by the amount of the Engineered Components Sale Proceeds (rounded to the
nearest $1,000) whereupon the Revolving Credit Commitments of the Lenders shall
be reduced pro rata on such date in accordance with their respective Commitment
Percentages. The Lenders and the Fronting Banks authorize the Administrative
Agent to enter into appropriate release documents necessary in order to release
the Administrative Agent's liens on the Engineered Components Assets.
SECTION 2. AMENDMENT TO FORBEARANCE AGREEMENT. (a) The Forbearance
Agreement is hereby amended with effect from the Effective Date of this
Agreement as follows:
(i) Section 1 of the Forbearance Agreement is amended by deleting
the date "September 27, 2001" in the two (2) places where such date is
contained therein and substituting the date "December 21, 2001".
(ii) Schedule 3(a) of the Forbearance Agreement is deleted in its
entirety and replaced with Schedule 3(a) attached hereto as Exhibit A.
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(iii) Section 3(b) of the Forbearance Agreement is amended by (A)
deleting the dollar amount "$154,000,000" contained in the first sentence
thereof and replacing it with the dollar amount "$153,045,000".
(iv) Section 3(d) of the Forbearance Agreement is amended by
inserting at the end thereof the following new sentence: "Notwithstanding
anything to the contrary contained in this Section 3(d), commencing on
October 19, 2001 and for so long thereafter as the Total Revolving Credit
Commitment exceeds $45,045,000 the Applicable Margin in effect with
respect to Base Rate Loans and the Applicable Margin in effect with
respect to Eurocurrency Rate Loans will be increased by 50bps."
(v) Section 3(e) of the Forbearance Agreement is amended by (a)
deleting the date "September 27, 2001" contained therein and substituting
the date "December 21, 2001", and (b) inserting at the end thereof the
following new sentence: "Notwithstanding anything to the contrary
contained in this Section 3(e), commencing on October 19, 2001 and for so
long thereafter as the Total Revolving Credit Commitment exceeds
$45,045,000 the Borrowers may not elect to convert any part of the Loans
to or maintain any part of the Loans as Eurocurrency Rate Loans
denominated in Dollars."
(vi) Section 3(k) of the Forbearance Agreement is amended by
deleting the dollar amount "$2,200,000" contained therein and substituting
the dollar amount "$4,700,000".
(vii) Section 3(n) of the Forbearance Agreement is amended by
deleting the date "September 27, 2001" contained therein and substituting
the date "December 21, 2001".
(viii) Schedule 6(a) of the Forbearance Agreement is deleted in its
entirety and replaced with Schedule 6(a) attached hereto.
(ix) Section 10 of the Forbearance Agreement is amended by adding
the following new paragraph (e) at the end thereof:
"(e) An additional forbearance fee on the earlier of (a) the date
that Borrowers prepay the Revolving Credit Loans and
permanently reduce the Total Revolving Credit Commitment in
connection with the Engineered Components Sale, and (b)
October 19, 2001, equal to one-quarter of one percent (1/4%)
of the Total Revolving Credit Commitment (after giving effect
to the reduction of the Total Revolving Credit Commitment as a
result of the Engineered Components Sale)."
(x) The Forbearance Agreement is amended by adding the following new
Section 10.A immediately after Section 10:
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"SECTION 10.A. BORROWING TO PAY SUBDEBT INTEREST. On October 1,
2001, TransTechnology shall pay the Administrative Agent, for the pro-rata
benefit of each Lender, a fee equal to One Hundred Thousand Dollars
($100,000) (representing four percent (4%) of Two Million Five Hundred
Thousand Dollars ($2,500,000) (the "Subdebt Interest Payment Amount")
which is the amount equal to the interest payment due on the Senior
Subordinated Loans on October 1, 2001 rounded to the nearest $100,000). At
all times after October 1, 2001, a portion of the Loans equal to the
Subdebt Interest Payment Amount shall bear interest (payable monthly in
arrears on the first day of each month) at an annual rate equal to twenty
five percent (25%)."
(xi) The Forbearance Agreement shall be deemed amended to include
capitalized defined terms used in this Agreement to the extent not defined
in the Forbearance Agreement.
(b) The Forbearance Agreement is hereby amended with effect from the
closing date of the Engineered Components Sale as follows:
(i) Section 3(a) of the Forbearance Agreement is amended by deleting
the words "; provided, however, Modified Consolidated EBITDA for periods
after June 1, 2001 shall not include any amounts relating to or otherwise
attributed to the Breeze Assets" and substituting the words "; provided,
however, Modified Consolidated EBITDA for periods after (i) June 1, 2001
shall not include any amounts relating to or otherwise attributed to the
Breeze Assets, and (ii) October 1, 2001 shall not include any amounts
relating to or otherwise attributed to the Engineered Components Assets."
(ii) Schedule 3(a) of the Forbearance Agreement is deleted in its
entirety and replaced with Schedule 3(a) attached hereto as Exhibit B.
(iii) Section 3(b) of the Forbearance Agreement is amended by
deleting the dollar amount "$153,045,000" contained in the first sentence
thereof and replacing it with the words "$43,500,000 minus the amount by
which the Engineered Components Sale Proceeds exceed $115,000,000 (rounded
to the nearest $1,000)".
SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement shall be conditioned upon the satisfaction of the following conditions
precedent:
SECTION 3.1. DELIVERY OF DOCUMENTS.
(a) This Agreement shall have been executed and delivered to the
Administrative Agent by each of the Borrowers, each of the Guarantors, and the
requisite Lenders.
(b) The Company and the holders of all of the Senior Subordinated Loans
shall have executed and delivered to the Administrative Agent an agreement in
substantially the form of Exhibit C hereto.
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SECTION 3.2. LEGALITY OF TRANSACTION. No change in applicable law shall
have occurred as a consequence of which it shall have become and continue to be
unlawful on the date this Agreement is to become effective (a) for the
Administrative Agent or any Lender to perform any of its obligations under any
of the Loan Documents or (b) for any of the Borrowers to perform any of its
agreements or obligations under any of the Loan Documents.
SECTION 3.3. PERFORMANCE. Each of the Borrowers shall have duly and
properly performed, complied with and observed in all material respects its
covenants, agreements and obligations contained in the Loan Documents required
to be performed, complied with or observed by it on or prior to the date this
Agreement is to become effective. Except for the Specified Defaults (as defined
in the Forbearance Agreement), no event shall have occurred on or prior to the
Effective Date, and be continuing, and no condition shall exist on the Effective
Date, which constitutes a Default or Event of Default.
SECTION 3.4. PROCEEDINGS AND DOCUMENTS. All corporate, governmental and
other proceedings in connection with the transactions contemplated by this
Agreement and all instruments and documents incidental thereto shall be in form
and substance reasonably satisfactory to the Administrative Agent and the
Administrative Agent shall have received all such counterpart originals or
certified or other copies of all such instruments and documents as the
Administrative Agent shall have reasonably requested.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
represents and warrants to the Lenders as follows:
(a) Except as set forth on Schedule 6(a) to the Forbearance Agreement, the
representations and warranties of such Borrower and of each Guarantor contained
in the Credit Agreement, the Forbearance Agreement and the other Loan Documents
to which such Borrower or Guarantor, as the case may be, is a party were true
and correct in all material respects when made and continue to be true and
correct in all material respects on the date hereof, except that the financial
statements and projections referred to in the representations and warranties
contained in the Credit Agreement shall be the financial statements and
projections of TransTechnology and its Subsidiaries most recently delivered to
the Administrative Agent, and except as such representations and warranties are
affected by the transactions contemplated hereby;
(b) The execution, delivery and performance by such Borrower of this
Agreement and the consummation of the transactions contemplated hereby: (i) are
within the corporate powers of such Borrower and have been duly authorized by
all necessary corporate action on the part of such Borrower, (ii) do not require
any approval or consent of, or filing with, any governmental agency or
authority, or any other person, association or entity, which bears on the
validity or enforceability of this Agreement and which is required by law or any
regulation or rule of any agency or authority, or other person, association or
entity, (iii) do not violate any provisions of any order, writ, judgment,
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injunction, decree, determination or award presently in effect in which such
Borrower is named, any law, regulation or rule binding on or applicable to such
Borrower or any provision of the charter documents or by-laws of such Borrower,
(iv) do not result in any breach of or constitute a default under any agreement
or instrument to which such Borrower is a party or to which it or any of its
properties are bound, including without limitation any indenture, credit or loan
agreement, lease, debt instrument or mortgage, except for such breaches and
defaults which would not have a material adverse effect on such Borrower and its
Subsidiaries taken as a whole, and (v) do not result in or require the creation
or imposition of any mortgage, deed of trust, pledge or encumbrance of any
nature upon any of the assets or properties of such Borrower;
(c) This Agreement, the Credit Agreement and the Forbearance Agreement
constitute the legal, valid and binding obligations of such Borrower,
enforceable against such Borrower in accordance with their respective terms,
provided that (i) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
affecting the rights and remedies of creditors, and (ii) enforcement may be
subject to general principles of equity, and the availability of the remedies of
specific performance and injunctive relief may be subject to the discretion of
the court before which any proceeding for such remedies may be brought; and
(d) As of the date hereof, no "Event of Default" under and as defined in
any instrument evidencing any Subordinated Debt has occurred.
SECTION 5. REAFFIRMATION. Except as modified hereby, the Borrowers hereby
reaffirm in all respects all the covenants, agreements, terms and conditions of
the Credit Agreement, the Forbearance Agreement and the other Loan Documents
which are incorporated in full herein by reference, and all terms, conditions
and provisions thereof shall remain in full force and effect.
SECTION 6. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
SECTION 7. RELEASE. In order to induce the Administrative Agent and the
Lenders to enter into this Agreement, each Borrower acknowledges and agrees
that: (i) no Borrower has any claim or cause of action against the
Administrative Agent or any Lender (or any of its respective directors,
officers, employees or agents); (ii) no Borrower has any offset right,
counterclaim or defense of any kind against any of their respective obligations,
indebtedness or liabilities to the Administrative Agent or any Lender; and (iii)
each of the Administrative Agent and the Lenders has heretofore properly
performed and satisfied in a timely manner all of its obligations to each
Borrower. The Borrowers wish to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the Administrative
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Agent's and the Lenders' rights, interests, contracts, collateral security or
remedies. Therefore, each Borrower unconditionally releases, waives and forever
discharges (A) any and all liabilities, obligations, duties, promises or
indebtedness of any kind of the Administrative Agent or any Lender to any
Borrower, except the obligations to be performed by the Administrative Agent or
any Lender on or after the date hereof as expressly stated in this Agreement,
the Credit Agreement, the Forbearance Agreement and the other Loan Documents,
and (B) all claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether arising at law or in equity, whether known or
unknown, which any Borrower might otherwise have against the Administrative
Agent, any Lender or any of its directors, officers, employees or agents, in
either case (A) or (B), on account of any condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind existing as of the date hereof, or occurring
prior to the date hereof.
SECTION 8. EFFECTIVE DATE. This Agreement shall be deemed to be effective
as of the date of satisfaction of the last conditions precedent set forth in
Section 3 hereof (the "Effective Date").
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have duly executed this Consent and
Amendment No. 2 to Forbearance Agreement as a sealed instrument as of the date
first set forth above.
TRANSTECHNOLOGY CORPORATION
By: /s/Joseph F. Spanier
----------------------------------------
Name: Joseph F. Spanier
Title: Vice President, Chief
Financial Officer &
Treasurer
TRANSTECHNOLOGY SEEGER-ORBIS GMBH
By: /s/Michael J. Berthelot
----------------------------------------
Name: Michael J. Berthelot
Title: Managing Director
TRANSTECHNOLOGY (GB) LIMITED
By: /s/Michael J. Berthelot
----------------------------------------
Name: Michael J. Berthelot
Title: Director
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Director
FLEET NATIONAL BANK,
individually, as Administrative Agent and
as Sterling Fronting Bank
By: /s/Peggy Peckham
----------------------------------------
Name: Peggy Peckham
Title: Senior Vice President
BHF-BANK AKTIENGESELLSCHAFT,
as DM Fronting Bank
By: /s/Constanze Neumann
----------------------------------------
Name: Constanze Neumann
Title: Treasurer
By: /s/Lothar Demuth
----------------------------------------
Name: Lothar Demuth
Title: Assistant Treasurer
ABN AMRO BANK N.V., individually and as
Syndication Agent
By: /s/Parker H. Douglas
----------------------------------------
Name: Parker H. Douglas
Title: Group Vice President
By: /s/Steven C. Wimpenny
----------------------------------------
Name: Steven C. Wimpenny
Title: Group Senior Vice President
BANK ONE, NA, individually and as
Documentation Agent
By: /s/Phillip D. Martin
----------------------------------------
Name: Phillip D. Martin
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/Richard J. Baldwin
----------------------------------------
Name: Richard J. Baldwin
Title: Vice President
KEY CORPORATE CAPITAL INC.
By: /s/Mark Kleinhaut
----------------------------------------
Name: Mark Kleinhaut
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/Brian S. Allen
----------------------------------------
Name: Brian S. Allen
Title: Managing Director
COMERICA BANK
By: /s/Jeffrey E. Peck
----------------------------------------
Name: Jeffrey E. Peck
Title: Vice President
DRESDNER BANK, AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/Richard J. Sweeney
----------------------------------------
Name: Richard J. Sweeney
Title: Vice President
By: /s/Thomas R. Brady
----------------------------------------
Name: Thomas R. Brady
Title: Vice President
The Guarantors under (and as defined in) the
Subsidiary Guaranty hereby acknowledge that
they have read and are aware of the
provisions of this Agreement and hereby
reaffirm their absolute and unconditional
guaranty of the Borrowers' payment and
performance of their obligations to the
Lenders and the Administrative Agent under
the Credit Agreement as affected hereby.
TRANSTECHNOLOGY ACQUISITION CORPORATION
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
PALNUT FASTENERS, INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
INDUSTRIAL RETAINING RING COMPANY
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
RETAINERS, INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
RANCHO TRANSTECHNOLOGY CORPORATION
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
TRANSTECHNOLOGY SYSTEMS & SERVICES, INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
ELECTRONIC CONNECTIONS AND ASSEMBLIES, INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
SSP INDUSTRIES
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
SSP INTERNATIONAL SALES, INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
TRANSTECHNOLOGY SEEGER INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
SEEGER INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
TCR CORPORATION
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
AEROSPACE RIVET MANUFACTURERS CORPORATION
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
NORCO, INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
ELLISON RING & WASHER INC.
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
TRANSTECHNOLOGY ENGINEERED
COMPONENTS, LLC
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
TRANSTECHNOLOGY CANADA CORPORATION
By: /s/Gerald C. Harvey
----------------------------------------
Name: Gerald C. Harvey
Title: Vice President & Secretary
Exhibit A
Schedule 3(a)
Financial Covenant
Period Modified Consolidated EBITDA
------ ----------------------------
April 1, 2001 through May 31, 2001 $ 6,700,000
April 1, 2001 through June 30, 2001 $10,400,000
April 1, 2001 through July 31, 2001 $11,600,000
April 1, 2001 through August 31, 2001 $13,650,000
April 1, 2001 through September 30, 2001 $19,000,000
April 1, 2001 through October 31, 2001 $22,000,000
April 1, 2001 through November 30, 2001 $25,000,000
April 1, 2001 through December 31, 2001 $28,000,000
Exhibit B
Schedule 3(a)
Financial Covenant
Period Modified Consolidated EBITDA
------ ----------------------------
April 1, 2001 through May 31, 2001 $ 6,700,000
April 1, 2001 through June 30, 2001 $10,400,000
April 1, 2001 through July 31, 2001 $11,600,000
April 1, 2001 through August 31, 2001 $13,650,000
April 1, 2001 through September 30, 2001 $19,000,000
April 1, 2001 through October 31, 2001 $20,000,000
April 1, 2001 through November 30, 2001 $21,500,000
April 1, 2001 through December 31, 2001 $23,000,000