EXHIBIT 10.41
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SECOND AMENDMENT TO CREDIT AGREEMENT
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SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
March 3, 2000, among CII TECHNOLOGIES, INC., a Delaware corporation
("Holdings"), COMMUNICATIONS INSTRUMENTS, INC., a North Carolina corporation
(the "Borrower"), the lending institutions from time to time party to the Credit
Agreement referred to below (the "Lenders"), BANK OF AMERICA, N.A. (as successor
to NationsBank, N.A.), as an Issuing Lender and the Swingline Lender, and BANK
OF AMERICA, N.A. (as successor to NationsBank, N.A.), as Administrative Agent
(in such capacity, the "Administrative Agent"). All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
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WHEREAS, Holdings, the Borrower, the Lenders and the Administrative
Agent are parties to an Amended and Restated Credit Agreement, dated as of June
19, 1998, and amended and restated as of March 19, 1999 (as amended, modified or
supplemented through, but not including, the date hereof, the "Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreement as herein provided, subject to and on the terms and conditions
set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 1.01 of the Credit Agreement is hereby amended by:
(i) amending the definition of "Consolidated EBITDA" appearing therein
by (a) deleting the word "and" appearing immediately before clause (x)(iv)
thereof and (b) inserting the following text immediately after the parenthetical
appearing in such clause (x)(iv) but before the comma after such parenthetical:
", and (v) up to $850,000 of costs associated with the relocation of
the Borrower's plant currently at Camino Viejo a San Lorenzo #6881, y
Rafael Perez Serna, Cd. Juarez, Chih. C.P. 32320";
(ii) deleting the definition of "Excess Cash Flow" appearing therein
and inserting in lieu thereof the following new definition of "Excess Cash
Flow":
"Excess Cash Flow" means, for any period, the remainder of (a)
the sum of, without duplication, (i) Consolidated Net Income for such
period and (ii) the amount of all non-cash charges included in
determining Consolidated Net Income
for such period, minus (b) the sum of, without duplication, (i) the
amount of all Capital Expenditures made by Holdings and its
Subsidiaries during such period (other than Capital Expenditures to
the extent financed with equity proceeds, Asset Sale proceeds,
insurance proceeds or Indebtedness), (ii) the amount of all Permitted
Acquisitions made by Holdings and its Subsidiaries during such period
(other than Permitted Acquisitions to the extent financed with equity
proceeds, Asset Sale proceeds, insurance proceeds or Indebtedness),
(iii) the aggregate amount of permanent principal payments of
Indebtedness of Holdings and its Subsidiaries during such period
(other than (A) repayments to the extent made with equity proceeds,
Asset Sale proceeds, insurance proceeds or Indebtedness and (B)
repayments of Loans, provided that repayments of Loans shall be
deducted in determining Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Repayment under Section 2.08(c)(i)
or (c)(ii) or (y) made as a voluntary prepayment with internally
generated funds (but in the case of a voluntary prepayment of
Revolving Loans or Swingline Loans only to the extent accompanied by a
voluntary reduction to the Aggregate Revolving Commitment)), (iv) any
non-cash credits (including from sales of assets and insurance
recoveries) included in determining Consolidated Net Income for such
period, (v) non-cash charges added back in a previous period pursuant
to clause (a)(ii) above to the extent any such charge has become a
cash item in the current period, and (vi) the amount of all cash
payments made by the Borrower pursuant to Section 2.5 of the
Acquisition Agreement during such period.";
(iii) inserting the following new definition of Level V in the
appropriate alphabetical order therein:
"Level V" has the meaning specified in Section 2.09(a)(ii)."; and
(iv) deleting in their entirety the definitions of "Adjusted
Consolidated Working Capital", "Consolidated Current Assets" and "Consolidated
Current Liabilities" appearing therein.
2. Section 2.09 of the Credit Agreement is hereby amended by:
(i) deleting the table appearing in clause (a)(ii) thereof in its
entirety and inserting in lieu thereof the following new table:
Applicable Margin
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LIBOR Base Rate
Consolidated Senior Leverage
Ratio is less than 0.50 to 1.00
("Level I") 1.500% 0.500%
Consolidated Senior Leverage
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Ratio is less than 1.00
to 1.00 but greater than or equal
to 0.50 to 1.00
("Level II") 2.000% 1.000%
Consolidated Senior Leverage
Ratio is less than 1.75 to 1.00 but
greater than
or equal to 1.00 to 1.00
("Level III") 2.250% 1.250%
Consolidated Senior Leverage
Ratio is less than 2.50 to 1.00 but
greater than or
equal to 1.75 to 1.00
("Level IV") 2.500% 1.500%
Consolidated Senior Leverage
Ratio is greater than or equal
to 2.50 to 1.00 2.750% 1.750%
("Level V")
(ii) deleting the text "Level IV" in each place where it appears in
clause (a)(iii) thereof and inserting in lieu thereof in each such place the
text "Level V"; and
(iii) deleting the percentages "2.250%" and "3.250%" appearing in
clause (b) thereof and inserting in lieu thereof the percentages "2.500%" and
"3.500%", respectively.
3. Section 2.10 of the Credit Agreement is hereby amended by:
(i) inserting the following new row in the table appearing in clause
(a) thereof immediately following the last row of such table:
"Level V 0.500%"; and
(ii) deleting the text "Level IV" in each place where it appears in
the provisos to clause (a) thereof and inserting in lieu thereof in each such
place the text "Level V".
4. Section 3.08 of the Credit Agreement is hereby amended by:
(i) inserting the following new row in the table appearing in clause
(a) thereof immediately following the last row of such table:
"Level V 2.750%"; and
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(ii) deleting the text "Level IV" in each place where it appears in
the provisos to clause (a) thereof and inserting in lieu thereof in each such
place the text "Level V".
5. Section 8.08(a) of the Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and inserting in lieu
thereof the following new table:
"Fiscal Quarter Ending On Ratio
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December 31, 1999 1.50:1.00
March 31, 2000 1.50:1.00
June 30, 2000 1.50:1.00
September 30, 2000 1.50:1.00
December 31, 2000 1.60:1.00
March 31, 2001 1.65:1.00
June 30, 2001 1.70:1.00
September 30, 2001 1.75:1.00
December 31, 2001 1.80:1.00
March 31, 2002 1.85:1.00
June 30, 2002 1.90:1.00
September 30, 2002 1.95:1.00
December 31, 2002 2.00:1.00
March 31, 2003 2.00:1.00
June 30, 2003 2.00:1.00
September 30, 2003 2.00:1.00
December 31, 2003 2.00:1.00
March 31, 2004 2.00:1.00".
6. Section 8.08(b) of the Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and inserting in lieu
thereof the following new table:
"Fiscal Quarter Ending On Ratio
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December 31, 1999 1.05:1.00
March 31, 2000 1.05:1.00
June 30, 2000 1.05:1.00
September 30, 2000 1.05:1.00
December 31, 2000 1.05:1.00
March 31, 2001 1.10:1.00
June 30, 2001 1.10:1.00
September 30, 2001 1.10:1.00
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December 31, 2001 1.10:1.00
March 31, 2002 1.15:1.00
June 30, 2002 1.15:1.00
September 30, 2002 1.15:1.00
December 31, 2002 1.15:1.00
March 31, 2003 1.20:1.00
June 30, 2003 1.20:1.00
September 30, 2003 1.20:1.00
December 31, 2003 1.25:1.00
March 31, 2004 1.25:1.00".
7. Section 8.09 of the Credit Agreement is hereby amended by deleting
the table appearing therein in its entirety and inserting in lieu thereof the
following new table:
"Period Ratio
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December 31, 1999 through and 5.80:1.00
including March 30, 2000
March 31, 2000 through 6.25:1.00
and including June 29, 2000
June 30, 2000 through 6.00:1.00
and including September 29, 2000
September 30, 2000 through 5.75:1.00
and including December 30, 2000
December 31, 2000 through 5.50:1.00
and including December 30, 2001
December 31, 2001 through 5.00:1.00
and including December 30, 2002
December 31, 2002 through 4.50:1.00
and including December 30, 2003
4.00:1.00".
December 31, 2003 and thereafter
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8. Section 8.10 of the Credit Agreement is hereby amended by deleting
the table appearing therein in its entirety and inserting in lieu thereof the
following new table:
"Fiscal Quarter Ending On Amount
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December 31, 1999 $ 30,000,000
March 31, 2000 $ 30,000,000
June 30, 2000 $ 30,000,000
September 30, 2000 $ 30,000,000
December 31, 2000 $ 31,000,000
March 31, 2001 $ 32,000,000
June 30, 2001 $ 32,500,000
September 30, 2001 $ 33,000,000
December 31, 2001 $ 33,500,000
March 31, 2002 $ 34,000,000
June 30, 2002 $ 34,500,000
September 30, 2002 $ 35,000,000
December 31, 2002 $ 35,250,000
March 31, 2003 $ 35,750,000
June 30, 2003 $ 36,000,000
September 30, 2003 $ 36,500,000
December 31, 2003 $ 36,750,000
March 31, 2004 $37,000,000".
9. In order to induce the Lenders to enter into this Amendment, each
of Holdings and the Borrower hereby represents and warrants that (i) the
representations and warranties contained in the Credit Agreement are true and
correct in all material respects on and as of the Second Amendment Effective
Date (as defined below) (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified date)
and (ii) there exists no Default or Event of Default on the Second Amendment
Effective Date, in each case after giving effect to this Amendment.
10. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Loan Document.
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11. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Holdings, the Borrower and the Administrative
Agent.
12. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
13. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when Holdings, the Borrower and the Majority Lenders
(i) shall have signed a counterpart hereof (whether the same or different
counterparts) and (ii) shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent; it being understood that all
interest, letter of credit fees and commitment fees that have accrued prior to
the Second Amendment Effective Date shall accrue at the respective rates
provided for in the Credit Agreement prior to giving effect to this Amendment.
14. From and after the Second Amendment Effective Date, all references
in the Credit Agreement and each of the Loan Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as amended hereby.
15. Each of Holdings and the Borrower hereby covenants and agrees
that, so long as the Second Amendment Effective Date occurs, the Borrower shall
pay to each Lender which executes and delivers to the Administrative Agent a
counterpart hereof by the later to occur of (x) the close of business on the
Second Amendment Effective Date or (y) 5:00 p.m. (New York time) on March 3,
2000, a cash fee in an amount equal to 20 basis points (.20%) of an amount equal
to the sum of (a) such Lender's outstanding Term Loans plus (b) such Lender's
Revolving Commitment, in each case as same is in effect on the Second Amendment
Effective Date after giving effect to this Amendment. All fees payable pursuant
to this Section 15 shall be paid by the Borrower to the Administrative Agent for
distribution to the respective Lenders not later than the first Business Day
following the Second Amendment Effective Date.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
CII TECHNOLOGIES, INC.
By_______________________________________
Name:
Title:
COMMUNICATIONS INSTRUMENTS, INC.
By_______________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as the Administrative Agent
By_______________________________________
Name:
Title:
BANK OF AMERICA, N.A., as an Issuing Lender
By_______________________________________
Name:
Title:
BANK OF AMERICA, N.A., as the Swingline Lender
By_______________________________________
Name:
Title:
BANK OF AMERICA, N.A., as a Lender
By
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Name:
Title:
ANTARES CAPITAL CORPORATION
By
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Name:
Title:
FIRST SOURCE FINANCIAL LLP
By: FIRST SOURCE FINANCIAL, INC., its
Agent/Manager
By
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
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Name:
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By
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Name:
Title:
By
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Name:
Title:
MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST
By
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Name:
Title:
JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney-in-fact, on
behalf of Jackson National Life Insurance Company
By
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Name:
Title:
VAN KAMPEN PRIME RATE INCOME TRUST
By
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Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment
Advisor
By
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Name:
Title:
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as Investment Advisor
By
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Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Trustee
for General Motors Employees Global Group Pension
Trust
By
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Name:
Title:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as
trustee of the Antares Funding Trust created under
the Trust Agreement dated as of November 30, 1999
By
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Name:
Title: