EXHIBIT 10.48
CONSENT,
AMENDMENT AGREEMENT NO. 5 TO CREDIT AGREEMENT AND
AMENDMENT NO. 4 TO FORBEARANCE AGREEMENT
This CONSENT, AMENDMENT AGREEMENT NO. 5 TO CREDIT AGREEMENT AND
AMENDMENT NO. 4 TO FORBEARANCE AGREEMENT, dated as of January 31, 2002 (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, as further amended by that certain Amendment
Agreement No. 3 dated as of January 31, 2001, and as further amended by that
certain Consent, Amendment Agreement No. 4 to Credit Agreement and Amendment No.
3 to Forbearance Agreement dated as of December 4, 2001 (the "December 2001
Amendment") (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 further amended by that
certain Consent and Amendment No. 2 to Forbearance Agreement dated as of
September 27, 2001, and as further amended by the December 2001 Amendment (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;
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WHEREAS; pursuant to the terms of the December 2001 Amendment the
Lenders' consent to the Seeger-Orbis Sale (as defined in the December 2001
Amendment) will expire on January 31, 2002;
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent extend the time period for the Borrowers to consummate the
Seeger-Orbis Sale;
WHEREAS, in accordance with Section 2 of the Forbearance Agreement, the
Borrowers have requested that the Lenders consent to the sale of TransTechnology
Engineered Rings USA, Inc. ("TTER USA") to SeaView Capital, LLC (the "TTER USA
Sale");
WHEREAS, the Borrowers have also requested the consent of the Lenders,
on the terms and conditions set forth herein, to certain intellectual property
transfers and the dissolution of certain inactive subsidiaries of
TransTechnology; and
WHEREAS, the Lenders and the Administrative Agent are willing to (i)
extend the time period for the Borrowers to consummate the Seeger-Orbis Sale,
(ii) consent to the TTER USA Sale, and (iii) consent to certain intellectual
property transfers and the dissolution of certain inactive subsidiaries of
TransTechnology, 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. EXTENSION OF TIME TO CONSUMMATE THE SEEGER-ORBIS SALE. The
date "January 31, 2002" set forth in Section 2 of the December 2001 Amendment is
hereby replaced with "February 28, 2002".
SECTION 2. CONSENT TO TTER USA. Subject to the satisfaction of the
conditions contained in Section 6 hereof, the Lenders, the Fronting Banks, and
the Administrative Agent consent to the TTER USA Sale and consent to the release
of the Administrative Agent's liens on the assets of TTER USA so long as (a) the
Net Cash Proceeds received by the Borrowers in connection with the TTER USA Sale
(the "TTER USA Sale Proceeds") are not less than the amount set forth on
Schedule 1 hereto, (b) all documents relating to the TTER USA Sale, including,
but not limited to any fairness opinions issued in connection with the TTER USA
Sale, shall be in form and substance satisfactory to the Administrative Agent,
(c) all TTER USA Sale Proceeds shall be applied immediately upon receipt to
prepay the Revolving Credit Loans, and (d) the TTER USA Sale Proceeds are
received not later than April 30, 2002. The Borrowers, the Lenders, the Fronting
Banks, and the Administrative Agent hereby agree that upon the consummation of
the TTER USA Sale the Total Revolving Credit Commitment shall be reduced by the
amount of the TTER USA 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
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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 assets of
TTER USA.
SECTION 3. CONSENT TO CERTAIN INTELLECTUAL PROPERTY TRANSFERS AND
SUBSIDIARY DISSOLUTIONS.
(a) As more particularly set forth in that certain Request for
Consent to Certain Transactions attached hereto as Exhibit A,
TransTechnology has advised the Administrative Agent that it wishes to
(i) transfer certain intellectual property currently held by Seeger,
Inc. to TTER USA (the "First IP Transfer"), (ii) transfer certain
intellectual property currently held by Seeger, Inc. to Limited
(referred to herein, together with the First IP Transfer, as the "IP
Transfers"), and (iii) dissolve each of Palnut Fasteners, Inc.,
TransTechnology Acquisition Corporation, Electronic Connections and
Assemblies, Inc. and TransTechnology Systems & Services, Inc.
(collectively, the "Dissolutions").
(b) The IP Transfers are prohibited under Section 10.5.2 of
the Credit Agreement, Section 5 of the Trademark Assignment, Section 4
of the Patent Assignment, and Section 6 of the Amended and Restated
Security Agreement dated as of June 30, 1995, amended and restated as
of August 31, 1999 (as amended and in effect from time to time, the
"Original Securities Pledge Agreement") by and among TransTechnology
and its Subsidiaries and the Administrative Agent. The Dissolutions are
prohibited under Section 9.6 of the Credit Agreement. TransTechnology
has requested that the Lenders provide written consent to each of the
IP Transfers and the Dissolutions, and to the extent necessary, waive
the provisions of Section 10.5.2 of the Credit Agreement, Section 5 of
the Trademark Assignment, Section 4 of the Patent Assignment, and
Section 10 of the Original Securities Pledge Agreement to permit the IP
Transfers and the Dissolutions.
(c) The Lenders hereby consent to the IP Transfers and the
Dissolutions and waive the provisions of Section 10.5.2 of the Credit
Agreement, Section 5 of the Trademark Assignment, Section 4 of the
Patent Assignment, and Section 10 of the Original Securities Pledge
Agreement solely to the extent necessary to permit the IP Transfers and
the Dissolutions, on the following condition:
(i) the receipt by the Administrative Agent of
completed and fully executed documentation satisfactory to the
Administrative Agent evidencing the IP Transfers and the
Dissolutions.
SECTION 4. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended with effect from the Effective Date (as defined in Section 11
hereof) as follows:
(a) Schedule 2.10 to the Credit Agreement is deleted in its
entirety and replaced with Schedule 2.10 attached hereto.
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SECTION 5. AMENDMENT TO FORBEARANCE AGREEMENT. The Forbearance
Agreement is hereby amended with effect from the Effective Date as follows:
(a) Section 3(a) of the Forbearance Agreement is amended by
deleting the words "the applicable column of".
(b) Schedule 3(a) to the Forbearance Agreement is deleted in
its entirety and replaced with Schedule 3(a) attached hereto.
(c) 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.
SECTION 6. CONDITIONS TO EFFECTIVENESS. The effectiveness of the
amendments to the Forbearance Agreement contained in Section 5 of this Agreement
shall be conditioned upon the satisfaction of the following conditions
precedent:
SECTION 6.1. DELIVERY OF DOCUMENTS. This Agreement shall have been
executed and delivered to the Administrative Agent by each of the Borrowers,
each of the Guarantors, and all of the Lenders.
SECTION 6.2. 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 6.3. 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 6.4. 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 6.5. PAYMENT OF LEGAL EXPENSES. The Administrative Agent shall
have received the payment in cash of all outstanding legal fees incurred by the
Administrative Agent.
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SECTION 7. 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,
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 (as amended hereby) and the
Forbearance Agreement (as amended hereby) 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.
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SECTION 8. 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 9. 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 10. 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 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 (as amended hereby),
the Forbearance Agreement (as amended hereby) 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 11. EFFECTIVE DATE. This Agreement shall be deemed to be
effective as of the date set forth above upon the satisfaction of the conditions
precedent set forth in Section 6 hereof (the "Effective Date").
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IN WITNESS WHEREOF, the undersigned have duly executed this Consent,
Amendment Agreement No. 5 to Credit Agreement and Amendment No. 4 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, CFO & Treasurer
TRANSTECHNOLOGY SEEGER-ORBIS GMBH
By: /s/Michael Berthelot
-----------------------------------------
Name: Michael Berthelot
Title: Managing Director
TRANSTECHNOLOGY (GB) LIMITED
By: /s/Michael Berthelot
-----------------------------------------
Name: Michael Berthelot
Title: Director
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Director
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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/Steven C. Wimpenny
--------------------------------
Name: Stephen C. Wimpenny
Title: Group Senior Vice President
By: /s/Parker H. Douglas
-----------------------------------------
Name: Parker H. Douglas
Title: Group Vice President
BANK ONE, NA, individually and as
Documentation Agent
By: /s/Phillip D. Martin
-----------------------------------------
Name: Phillip D. Martin
Title: Senior Vice President
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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 Pres.
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/Thomas R. Brady
-----------------------------------------
Name: Thomas R. Brady
Title: Vice President
By: /s/Richard J. Sweeney
-----------------------------------------
Name: Richard J. Sweeney
Title: Vice President
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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/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
PALNUT FASTENERS, INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
TT ENGINEERED RINGS USA, INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
RETAINERS, INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
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RANCHO TRANSTECHNOLOGY CORPORATION
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
TRANSTECHNOLOGY SYSTEMS & SERVICES, INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
ELECTRONIC CONNECTIONS AND ASSEMBLIES, INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Treasurer
SSP INDUSTRIES
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Treasurer
SSP INTERNATIONAL SALES, INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President, Chief
Financial Officer &
Treasurer
136
TRANSTECHNOLOGY SEEGER INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
SEEGER INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President & Treasurer
TCR CORPORATION
By: /s/Michael J. Berthelot
-----------------------------------------
Name: Michael J. Berthelot
Title: Chairman of the Board
AEROSPACE RIVET MANUFACTURERS CORPORATION
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Vice President, Chief
Financial Officer &
Treasurer
NORCO, INC.
By: /s/Michael J. Berthelot
-----------------------------------------
Name: Michael J. Berthelot
Title: Chairman of the Board
ELLISON RING & WASHER INC.
By: /s/Joseph F. Spanier
-----------------------------------------
Name: Joseph F. Spanier
Title: Treasurer
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