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EXHIBIT 10.2
OMNIBUS AMENDMENT
Omnibus Amendment, dated as of April 30, 2001 (this "Amendment"), among
AAVID THERMAL TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"), HEAT
HOLDINGS CORP., a Delaware corporation (the "Parent"), HEAT HOLDINGS II CORP., a
Delaware corporation ("Heat Holdings II"), the several banks and other financial
institutions from time to time parties to the Credit Agreement (the "Lenders"),
CIBC WORLD MARKETS CORP., as lead arranger and bookrunner (in such capacity, the
"Lead Arranger"), CANADIAN IMPERIAL BANK OF COMMERCE, as issuer of certain
letters of credit (the "Issuer"), FLEET NATIONAL BANK, formerly known as
BankBoston, N.A., as documentation agent (the "Documentation Agent") and
CANADIAN IMPERIAL BANK OF COMMERCE, as agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Parent, Heat Holdings II, the Lenders, the Lead
Arranger, the Documentation Agent, the Issuer and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement, dated as of
February 2, 2000 (such agreement, as amended from time to time, the "Credit
Agreement"; terms defined in the Credit Agreement are used herein as defined
therein).
WHEREAS, the Borrower has executed that certain Amended and Restated
Borrower Pledge Agreement, dated as of February 2, 2000 (the "Borrower Pledge
Agreement") in favor of the Administrative Agent, for the benefit of the
Lenders;
WHEREAS, the Parent has executed that certain Parent Pledge Agreement,
dated as of February 2, 2000 (the "Parent Pledge Agreement") in favor of the
Administrative Agent, for the benefit of the Lenders;
WHEREAS, Heat Holdings II has executed that certain Heat Holdings II Corp.
Pledge Agreement, dated as of February 2, 2000 (the "Heat Holdings II Pledge
Agreement"; and together with the Borrower Pledge Agreement and the Parent
Pledge Agreement, collectively, the "Agreements") in favor of the Administrative
Agent, for the benefit of the Lenders;
WHEREAS, the Borrower, the Parent, Heat Holdings II, the Lenders, the Lead
Arranger, the Documentation Agent, the Issuer and the Administrative Agent are
parties to that certain Amendment No. 1, dated as of the date hereof (the
"Amendment"), to the Credit Agreement;
WHEREAS, it is a condition to the effectiveness of the Amendment that the
Borrower, the Parent, Heat Holdings II and the other parties hereto shall have
executed and delivered this Amendment;
WHEREAS, the Borrower, the Parent, Heat Holdings II and the other parties
hereto wish to amend the Agreement as set forth herein in order to, among other
things, reflect the execution of the Amendment;
NOW, THEREFORE, in consideration of the premises contained herein and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce the Lenders, the Lead Arranger, the Documentation
Agent, the Issuer and the Administrative Agent to enter into the Amendment, the
parties hereto agree as follows:
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SECTION 1. Amendments to the Borrower Pledge Agreement. The Borrower Pledge
Agreement is hereby amended as follows:
(a) Section 5(c) of the Borrower Pledge Agreement is hereby amended in its
entirety to read as follows:
Without the prior written consent of the Administrative Agent, the Pledgor
will not (i) vote to enable, or take any other action to permit, any issuer
of Pledged Stock to issue Capital Stock or other equity securities of any
nature or to issue any other securities convertible into or granting the
right to purchase or exchange for any Capital Stock or other equity
securities of any nature of any issuer of Pledged Stock (other than as
permitted by the Credit Agreement), (ii) sell, assign, transfer, exchange,
or otherwise dispose of, or grant any option with respect to, the
Collateral (other than as permitted by the Credit Agreement), or (iii)
create, incur or permit to exist any other Lien or option in favor of, or
any claim of any Person with respect to, any of the Collateral, or any
interest therein, except as permitted by the Credit Agreement and except
for the Lien provided for by this Pledge Agreement. The Pledgor will defend
and will indemnify and hold harmless the Administrative Agent and the
Lenders against the claims and demands of all Persons whomsoever with
respect to any claim arising from or in connection with the right, title
and interest of the Administrative Agent and the Lenders in and to the
Collateral.
SECTION 2. Amendments to the Parent Pledge Agreement. The Parent Pledge
Agreement is hereby amended as follows:
(a) Section 5(b) of the Parent Pledge Agreement is hereby amended in its
entirety to read as follows:
(b) Without the prior written consent of the Administrative Agent,
the Pledgor will not (i) vote to enable, or take any other action
to permit, any issuer of Pledged Stock to issue Capital Stock or
other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or
exchange for any Capital Stock or other equity securities of any
nature of any issuer of Pledged Stock (other than as permitted by
the Credit Agreement), (ii) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral (other than as permitted by the Credit Agreement), or
(iii) create, incur or permit to exist any other Lien or option
in favor of, or any claim of any Person with respect to, any of
the Collateral, or any interest therein, except as permitted by
the Credit Agreement and except for the Lien provided for by this
Pledge Agreement. The Pledgor will defend and will indemnify and
hold harmless the Administrative Agent and the Lenders against
the claims and demands of all Persons whomsoever with respect to
any claim arising from or in connection with the right, title and
interest of the Administrative Agent and the Lenders in and to
the Collateral.
SECTION 3. Amendments to the Heat Holdings II Pledge Agreement. The Heat
Holdings II Pledge Agreement is hereby amended as follows:
(a) Section 5(b) of the Heat Holdings II Pledge Agreement is hereby amended
in its entirety to read as follows:
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(b) Without the prior written consent of the Administrative Agent,
the Pledgor will not (i) vote to enable, or take any other action
to permit, any issuer of Pledged Stock to issue Capital Stock or
other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or
exchange for any Capital Stock or other equity securities of any
nature of any issuer of Pledged Stock (other than as permitted by
the Credit Agreement), (ii) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral (other than as permitted by the Credit Agreement), or
(iii) create, incur or permit to exist any other Lien or option
in favor of, or any claim of any Person with respect to, any of
the Collateral, or any interest therein, except as permitted by
the Credit Agreement and except for the Lien provided for by this
Pledge Agreement. The Pledgor will defend and will indemnify and
hold harmless the Administrative Agent and the Lenders against
the claims and demands of all Persons whomsoever with respect to
any claim arising from or in connection with the right, title and
interest of the Administrative Agent and the Lenders in and to
the Collateral.
(b) A new Section 5(f) is hereby added to the Heat Holdings II Pledge
Agreement to read as follows:
(f) So long as this Pledge Agreement is in effect, the Pledgor agrees
that, without the consent of the Administrative Agent, it will
not permit the exercise of any option created pursuant to the
Call Option Agreements dated April 30, 2001 between the Pledgor
and certain stockholders of the Pledgor, as amended from time to
time (a "Call Option"), unless the party exercising such Call
Option has agreed to pledge any securities being acquired upon
such exercise to the Administrative Agent for the ratable benefit
of the Lenders, on terms and conditions reasonably satisfactory
to the Administrative Agent.
SECTION 4. Representations and Warranties. To induce the Administrative
Agent, the Issuer and the Lenders to enter into this Amendment, each of the
Parent, Heat Holdings II and the Borrower represents and warrants to the
Administrative Agent, the Issuer and the Lenders that, on the Effective Date (as
defined below) after giving effect to this Amendment, all the representations
and warranties of each of the Parent, Heat Holdings II and the Borrower in or
pursuant to the Agreements, shall be true and correct in all material respects
on and as of such date as if made on and as of such date (other than any such
representations or warranties that, by their terms, refer to a specific date, in
which case as of such specific date).
SECTION 5. Conditions to Effectiveness. This Amendment shall be effective
(such date, the "Effective Date") when the following conditions precedent shall
have been satisfied:
(a) The Administrative Agent shall have received counterparts hereof
executed by duly authorized officers of each of the Parent, Heat Holdings II and
the Borrower, and by duly authorized signatories of the Lenders.
(b) All fees and expenses due and owing to the Administrative Agent or any
Lender (including, without limitation, any reasonable fees and expenses of
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counsel to the Administrative Agent) shall have been paid.
SECTION 6. Reference to and Effect in the Agreements.
(a) Upon the Effective Date, each reference in the Agreements to "Pledge
Agreement", "hereunder", "hereof" or words of like import referring to each
Agreements, as applicable, and each reference in the Loan Documents (as such
term is defined in the Credit Agreement) to "the Pledge Agreements",
"thereunder", "thereof" or words of like import referring to the Agreements,
shall mean and be a reference to the Agreements as amended hereby.
(b) Except as specifically amended above, each of the Agreements is and
shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the
Agreement and all the Pledge Stocks and Pledge Debt described therein do and
shall continue to secure the payment of all obligations of the Borrower under
the Credit Agreement, the Notes and the other Loan Documents.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of the
Agreements or the Confirmations.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to its conflict of laws principles other than Section 5-1401 of the General
Obligations Law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
AAVID THERMAL TECHNOLOGIES, INC.
/s/ Bharatan R. Patel
By: ___________________________
Name: Bharatan R. Patel
Title: Chief Executive Officer
HEAT HOLDINGS CORP.
/s/ Bharatan R. Patel
By: ___________________________
Name: Bharatan R. Patel
Title: Vice President
HEAT HOLDINGS II CORP.
/s/ Bharatan R. Patel
By: ___________________________
Name: Bharatan R. Patel
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
/s/ Keith Labbate
By: ________________________________
Keith Labbate
Executive Director
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Name:
Title: