Exhibit 99.1
Execution Copy
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of July 14, 2005, by JPMORGAN CHASE BANK, N.A., successor by
merger to Bank One, NA (Main Office Chicago), as Lender (the "Lender");
MAGNETEK, INC., a Delaware corporation ("MagneTek") and MAGNETEK ADS POWER,
INC., a Delaware corporation, as Borrowers; and MAGNETEK LEASING CORPORATION, a
Delaware corporation, MAGNETEK MONDEL HOLDING, INC., a Delaware corporation,
MAGNETEK NATIONAL ELECTRIC COIL, INC., a Delaware corporation and MONDEL ULC, an
unlimited liability corporation organized under the laws of Nova Scotia, Canada,
as Guarantors. Capitalized terms used, but not defined, in this Amendment which
are defined in the Credit Agreement (as defined below) will have the meanings
given to such terms in the Credit Agreement (as defined below).
Recitals
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A. The Borrowers, the Guarantors and the Lender entered into a Credit
Agreement dated as of August 15, 2003, as amended by the First Amendment to
Credit Agreement dated as of November 25, 2003, the Second Amendment to Credit
Agreement dated as of February 12, 2004, the Third Amendment to Credit Agreement
dated as of September 9, 2004, and the Fourth Amendment to Credit Agreement
dated as of December 31, 2004 (as so amended, supplemented and modified, the
"Credit Agreement").
B. The Borrowers and the Guarantors have requested that the Lender (i)
consent to the dissolution of Magnetek Leasing Corporation ("MLC"), a Delaware
corporation, and the distribution of all of its property, real and personal,
tangible and intangible, to MagneTek (the "MLC Dissolution and Distribution").
C. On or about May 4, 2005, the Borrowers notified the Lender that the
arbitrator in In the Matter of the Arbitration between Ole K. Nilssen; GEO
Foundation, Ltd. and MagneTek, Inc., Case Number 51 133 Y 01452 04 (the
"Arbitration") awarded the amount of $23,352,439.63 in favor of Ole K. Nilssen
against MagneTek (the "Award"), and that the Award is reasonably expected to
have a Material Adverse Effect on MagneTek and the Consolidated Group.
Subsequently, Mr. Nilssen has filed proceedings in Case No. 05-CV-02933 in the
U.S. District Court for the Northern District of Illinois for an order of
judgment confirming the Award (the "Litigation").
D. On or about May 5, 2005, the Lender notified the Borrowers, inter alia,
that the Award constituted an Unmatured Default (the "Current Unmatured
Default") under the Credit Agreement and the Lender had no obligation to make
any Credit Extensions to the Borrowers under the Credit Agreement.
E. The Borrowers have further informed the Lender that as of July 3, 2005,
the Borrowers are in breach of the following financial covenants contained in
the Credit Agreement: Section 6.29.2, "Minimum Fixed Charge Coverage Ratio",
Section 6.29.3, "Minimum EBITDA", and Section 6.34, "Operating Profit" (the
"Current Covenant Defaults") and have asked the Lender to waive the Current
Covenant Defaults as of July 3, 2005.
F. The Borrowers and the Guarantors desire that the Lender: (i) continue to
make Credit Extensions under the terms of the Credit Agreement, notwithstanding
the Award and the Current Covenant Defaults, and (ii) agree to certain
amendments to the Credit Agreement, all as contemplated by the terms, and
subject to the conditions, of this Amendment.
G. The Borrowers and the Guarantors have represented to the Lender that
they will use their best efforts to obtain financing sufficient to pay in full
no later than September 30, 2005, all Obligations to the Lender in respect of
the Credit Agreement and the Loan Documents.
H. The Lender is willing to consent to the MLC Dissolution and Distribution
and to amend the Credit Agreement as contemplated by the terms, and subject to
the conditions, of this Amendment.
Statement of Amendment
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In consideration of the mutual covenants and agreements and the conditions
set forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Lender, the
Borrowers, and the Guarantors hereby agree as follows:
1. Agreement for Credit Extensions. The agreement provided in this Section
1, either alone or together with other accommodations or waivers which the
Lender may give from time to time, shall not, by course of dealing, implication
or otherwise, obligate the Lender to waive any Default or Unmatured Default,
past, present or future, or reduce, restrict or in any way affect the discretion
of the Lender in considering any future accommodation, waiver or modification
requested by the Borrowers or any of the other Loan Parties. The Lender agrees
that it shall continue to make Revolving Loans to the Borrowers pursuant to the
terms of Section 2.1.1 of the Credit Agreement and issue Facility LC's for the
benefit of the Borrowers pursuant to the terms of Section 2.1.2 of the Credit
Agreement, notwithstanding the existence of the Current Unmatured Default and
the Current Covenant Defaults; provided, however, that the Lender shall have no
obligation to make Credit Extensions to the Borrowers if (i) any Unmatured
Default (other than the current Unmatured Default) exists or (ii) any Default
has occurred and is continuing, regardless if the same relates to the Award.
2. Waiver of Current Financial Covenant Defaults. The Borrowers agree that
the Current Covenant Defaults have occurred and are continuing as follows: (i)
under Section 6.29.2 of the Credit Agreement with respect to the Fixed Charge
Coverage Ratio for the Test Period ended July 3, 2005 (a required 1.25 to 1.00
opposite an actual result of a negative ratio), (ii) under Section 6.29.3 of the
Credit Agreement with respect to the EBITDA Covenant for the Test Period ended
July 3, 2005 (a required $1,050,000 opposite a result of less than zero), and
(iii) under Section 6.34 of the Credit Agreement with respect to the Operating
Profit Covenant of (A) PEG for the Test Period ended July 3, 2005 (a required
minimum profit of $400,000 opposite a result of less than such amount), and (B)
TPG for the Test Period ended July 3, 2005 (a required maximum loss of
$1,250,000 opposite a result of a loss exceeding such amount).
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The Loan Parties have requested that the Lender waive the Current Covenant
Defaults through and including July 3, 2005, and the Lender hereby waives such
Current Covenant Defaults through and including July 3, 2005. The waiver
provided in this Section 2 will not apply to any other Default or Unmatured
Default, whether past, present, or future, including, without limitation, any
violations of the financial covenants described in this Section 2 and Recital E
above as of dates other than that specifically referenced in this Section 2. The
waiver provided in this Section 2, either alone or together with other waivers
which the Lender may give from time to time, shall not, by course of dealing,
implication or otherwise, obligate the Lender to waive any Default or Unmatured
Default, past, present or future, other than those specifically waived by this
Amendment, or reduce, restrict or in any way affect the discretion of the Lender
in considering any future waiver requested by the Borrowers or any of the other
Loan Parties.
3. Amendments to the Credit Agreement.
-----------------------------------
3.1 The definition of "Commitment" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety by substituting the following
in its stead:
"Commitment" means the obligation of the Lender to make Loans to,
and issue Facility LCs upon the application of, the Borrower
Representative in an aggregate amount not exceeding $7,500,000,
as permanently reduced pursuant to the terms of this Agreement,
and as such amount may be modified from time to time pursuant to
the terms hereof.
3.2 The definition of "Facility Termination Date" in Section 1.1 of
the Credit Agreement is hereby amended in its entirety by substituting the
following in its stead:
"Facility Termination Date" means September 30, 2005 or any
earlier date on which the Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
3.3 The definition of "Inactive Companies" in Section 1.1 of the
Credit Agreement is hereby amended by deleting the reference to "Magnetek
Leasing Corporation, a Delaware corporation".
3.4 The definition of "Reserves" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety by substituting the following
in its stead:
"Reserves" means any and all reserves which the Lender deems
necessary, in its Permitted Discretion, to maintain (including
reserves resulting from any Defaults or any awards, orders,
judgments or Liens, for cost testing, aged credits, accrued and
unpaid interest on the Secured Obligations, Banking Services
Reserves, reserves for rent at locations leased by any Loan Party
and for warehousemen's and bailee's charges, reserves for
dilution
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of Accounts, reserves for Inventory shrinkage, reserves for
customs charges and shipping charges related to any Inventory in
transit, reserves for Rate Management Transactions, reserves for
contingent liabilities of any Loan Party, reserves for uninsured
losses of any Loan Party and reserves for taxes, fees,
assessments, and other governmental charges) with respect to the
Collateral or any Loan Party. Without limiting the generality of
the forgoing, Borrowers expressly agree that Reserves include (a)
a reserve for the amount then due and owing to Lender or an
Affiliate of Lender under the Equipment Leases, as determined by
Lender from time to time, and (b) a reserve for Lender's
automated clearinghouse exposure in respect of the Borrowers, as
determined by Lender from time to time.
3.5 Subsection (a) of Section 2.1.2 of the Credit Agreement is hereby
amended in its entirety by substituting the following in its stead:
(a) Issuance. The Lender issued the Existing LCs and the
Lender hereby agrees, on the terms and conditions set forth in
this Agreement, to issue standby and commercial Letters of Credit
(each, including each "Existing LC", a "Facility LC") and to
renew, extend, increase, decrease or otherwise modify each
Facility LC ("Modify," and each such action a "Modification"),
from time to time from and including the Effective Date and prior
to the Facility Termination Date upon the request and for the
account of the Borrower Representative; provided that, the
maximum face amount of the Facility LC to be issued or Modified,
as the case may be, does not exceed the lesser of (i) an amount
equal to $1,750,000 minus the sum of (1) the aggregate undrawn
amount of all outstanding Facility LCs at such time plus, without
duplication, (2) the aggregate unpaid Reimbursement Obligations
with respect to all Facility LCs outstanding at such time and
(ii) Availability. No Facility LC (other than the Facility LC's
set forth in Schedule 3.5 to the Fifth Amendment (as defined
below)) shall have an expiry date later than the earlier of (x)
the thirtieth (30th) Business Day prior to the Facility
Termination Date and (y) one year after its issuance; provided
that any Letter of Credit with a one-year tenor may provide for
the renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in clause (x)
above).
3.6 Subsections (b), (c), (d) and (e) of Section 2.13 of the Credit
Agreement are hereby amended in their entirety by substituting the
following in their stead:
(b) Sale of Assets. Immediately upon receipt by any Loan
Party of the Net Cash Proceeds of any asset disposition
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(other than sales of Inventory in the ordinary course of
business; however, a sale in the ordinary course of business will
not include a transfer in total or partial satisfaction of
indebtedness), the Borrowers shall prepay the Obligations in an
amount equal to all such Net Cash Proceeds. Any such prepayment
shall be applied first, to pay the principal of the Revolving
Loans, with the Commitment being permanently reduced by fifty
percent (50%) of such Net Cash Proceeds until such time as the
Commitment is zero, and second, to cash collateralize outstanding
Facility LCs by depositing such proceeds in the Facility LC
Collateral Account until such cash collateral equals one hundred
and five percent (105%) of the amount of the LC Obligations.
(c) Issuance of Debt or Equity. If MagneTek issues Capital
Stock or any Loan Party issues any Debt For Borrowed Money (other
than the type set forth in clauses (c), (d), (e), (f) or (g) of
the definition of Debt For Borrowed Money) or if any Loan Party
receives any dividend or distribution from a Person other than a
Loan Party, no later than the Business Day following the date of
receipt of any Net Cash Proceeds of such issuance or receipt of
such dividend, distribution, loan or advance, the Borrowers shall
prepay the Obligations in an amount equal to all such Net Cash
Proceeds or such dividends, distributions, loans or advances. Any
such prepayment shall be applied first, to pay the principal of
the Revolving Loans, with the Commitment being permanently
reduced by fifty percent (50%) of such Net Cash Proceeds until
such time as the Commitment is zero, and second, to cash
collateralize outstanding Facility LCs by depositing such
proceeds in the Facility LC Collateral Account until such cash
collateral equals one hundred and five percent (105%) of the
amount of the LC Obligations.
(d) Insurance/Condemnation Proceeds. Any insurance or
condemnation proceeds to be applied to the Obligations in
accordance with Section 6.7(c) shall be applied pursuant to the
following sentence. Any such prepayment shall be applied first,
to pay the principal of the Revolving Loans, with the Commitment
being permanently reduced by fifty percent (50%) of such Net Cash
Proceeds until such time as the Commitment is zero, and second,
to cash collateralize outstanding Facility LCs by depositing such
proceeds in the Facility LC Collateral Account until such cash
collateral equals one hundred and five percent (105%) of the
amount of the LC Obligations.
(e) Tax Refund. On the date of receipt thereof by any Loan
Party of a Tax Refund, an amount equal to 100% of the Tax Refund
shall be paid to the Lender. Any such prepayment shall be applied
first, to pay the principal of the Revolving Loans, with the
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Commitment being permanently reduced by fifty percent (50%) of
such Net Cash Proceeds until such time as the Commitment is zero,
and second, to cash collateralize outstanding Facility LCs by
depositing such proceeds in the Facility LC Collateral Account
until such cash collateral equals one hundred and five percent
(105%) of the amount of the LC Obligations. "Tax Refund" means
any refund of any taxes, fees or interest which (i) are paid to
MagneTek by any Governmental Authority and are attributable to
losses, deductions, credits, or payments of, or by, any Loan
Party or (ii) are paid directly to any Loan Party by any
Governmental Authority.
3.7 Subsection 6.29.4 of Section 6.29 of the Credit Agreement is
hereby amended in its entirety by substituting the following in its stead:
6.29.4. Minimum Availability. The Borrowers shall maintain,
at all times and under all circumstances, Availability of not
less than $500,000 in the aggregate.
3.8 Subsection (j) of Section 7.1 of the Credit Agreement is hereby
amended in its entirety by substituting the following in its stead:
(j) (i) any Loan Party shall fail within five days to pay, bond,
vacate or otherwise discharge one or more (A) judgments or orders
for the payment of money in excess of $250,000 (or the equivalent
thereof in currencies other than U.S. Dollars) in the aggregate,
or (B) nonmonetary judgments or orders which, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect, or (ii) any such judgment, judgments, order or
orders, in any such case, are not stayed with respect to all
enforcement actions, or (iii) if any such judgment, judgments,
order or orders become a Lien or encumbrance on any property of
any Loan Party, which property has a value in excess of $100,000,
or (iv) any writ of attachment, garnishment, execution,
distraint, levy, distress warrant, assessment or similar process
is issued with respect to any such judgment, judgments, order or
orders described above or against any property of any Loan Party,
which property has a value in excess of $100,000;
3.9 A new Section 6.35 is hereby added to the Credit Agreement and
shall state in its entirety as follows:
6.35. Undertaking to Obtain Financing; Landlord Waivers and
Collateral Schedules. (a) Beginning the date of the Fifth
Amendment to Credit Agreement dated July ___, 2005 (the "Fifth
Amendment"), and continuing at all times thereafter, the
Borrowers and the Guarantors agree to use their best efforts to
obtain from a lender or finance company one or more credit
extensions to enable
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the Borrower to pay in full all Obligations, indebtedness and
liabilities of every nature whatsoever, of the Borrowers to the
Lender and any affiliate of the Lender, including without
limitation any amount due or owing any Lender pursuant to the
Credit Agreement or any other Loan Document.
(b) Upon the request of the Lender at any time, the
Borrowers and each Guarantor will fully cooperate with the Lender
and appraisers selected by the Lender to obtain inventory and
equipment appraisals, and the Borrowers agree, jointly and
severally, to pay all expenses of the Lender incurred in
connection therewith.
(c) In respect of the efforts to obtain the financing
described above, the Borrower Representative agrees to (i) advise
the Lender in writing not less frequently than on Friday of each
week of all efforts to obtain such financing, beginning the first
Friday after the date of the Fifth Amendment.
(d) The Borrower Representative will use its best efforts to
obtain no later than July 31, 2005, a landlord waiver, in form
reasonably acceptable to Lender, for the leased location at 10900
Wilshire Blvd., Los Angeles, CA.
(e) No later than July 31, 2005, the Borrower Representative
will provide to Lender, updated as of a date no earlier than May
31, 2005, revised Exhibits B, D and E to each Loan Party's
respective Security Agreement, together with any titles or other
original Collateral, as required under the Security Agreements.
4. MLC Dissolution and Distribution.
4.1 The Borrowers and the Guarantors warrant and agree that the
MLC Dissolution and Distribution will take place in accordance with
the agreements, instruments and documents attached as Exhibit 4.1 to
this Amendment (collectively, the "MLC Documents"). Upon the terms and
subject to the conditions of this Amendment, the Lender hereby
consents to the MLC Dissolution and Distribution, without recourse,
representation or warranty.
4.2 To the extent not assumed by operation of law or by the MLC
Documents, MagneTek hereby acknowledges, confirms and agrees that it
is liable for, and it promises to pay, perform, and observe, all of
the terms, covenants, conditions, obligations, liabilities, and
indebtedness of MLC to the Lender of any type whatsoever, including,
but not limited to, the Obligations and all of terms, covenants,
conditions, obligations, liabilities and indebtedness of MLC under
each of the Loan Documents to which MLC is a party (or by which its
property is bound) and all Obligations hereinafter arising thereunder.
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4.3 MagneTek agrees that the Liens of the Loan Documents,
including, without limitation, the after-acquired property clauses
thereof, survive the MLC Dissolution and Distribution and are, and
will be, effective as to all of the property described in the Loan
Documents, whether then existing or owned, now existing or owned or
hereafter arising or acquired and whether acquired by MLC, and all
substitutions, replacements, renewals, reissues, accessions and
additions thereto or thereof, now existing or hereafter arising.
5. Reaffirmation of Security. The Borrowers, the Guarantors and the
Lender hereby expressly intend that this Amendment shall not in any manner
(i) constitute the refinancing, refunding, payment or extinguishment of the
Obligations evidenced by the existing Loan Documents; (ii) be deemed to
evidence a novation of the outstanding balance of the Obligations; or (iii)
affect, replace, impair, or extinguish the creation, attachment, perfection
or priority of the Liens on the Collateral granted pursuant to the Loan
Documents evidencing, governing or creating a Lien on the Collateral. The
Borrowers and the Guarantors ratify and reaffirm any and all grants of
Liens to the Lender on the Collateral as security for the Obligations, and
the Borrowers and the Guarantors acknowledge and confirm that the grants of
the Liens to the Lender on the Collateral: (a) represent continuing Liens
on all of the Collateral, (b) secure all of the Obligations, and (c)
represent valid, first and best Liens on all of the Collateral except to
the extent, if any, of the Permitted Liens.
6. Representations. To induce the Lender to accept this Amendment, the
Borrowers and the Guarantors hereby represent and warrant to the Lender as
follows:
6.1 Each Borrower and Guarantor has full power and authority to
enter into, and to perform its obligations under, this Amendment, and
the execution and delivery of, and the performance of its obligations
under and arising out of, this Amendment have been duly authorized by
all necessary corporate action.
6.2 This Amendment constitutes the legal, valid and binding
obligations of each Borrower and Guarantor enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
6.3 The representations and warranties of each Borrower and
Guarantor contained in the Loan Documents are complete and correct as
of the date of this Amendment (other than a representation or warranty
that is stated to relate solely to an earlier date) with the same
effect as though such representations and warranties had been made
again on and as of the date of this Amendment, subject to those
changes as are not prohibited by, or do not constitute a Default
under, the Loan Documents; provided, however, that Schedule 5.9 of the
Credit Agreement is hereby amended and restated in its entirety by
substituting in its stead the document attached as Amended and
Restated Schedule 5.9 to this Amendment.
6.4 Upon the effective date of this Amendment, no Default or
Unmatured Default has occurred and is continuing.
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6.5 On consummation of the MLC Dissolution and Distribution,
MagneTek will directly acquire, and obtain good title to, all of the
assets and properties, real and personal, tangible and intangible, of
MLC.
6.6 MLC and Magnetek each has adequate power and authority, and
each of them has full legal right to enter into each of the MLC
Documents to which it is a party, and to perform, observe and comply
with all of their respective agreements and obligations under each of
such MLC Documents. The Lender continues to have, and will have
following the consummation of the MLC Dissolution, a first priority
security interest in and Lien on all of the assets and property, real
and personal, tangible and intangible, formerly owned by MLC and now
owned by MagneTek except to the extent, if any, of the Permitted
Liens.
6.7 The execution and delivery by MLC and MagneTek of the MLC
Documents, the performance by MLC and MagneTek of all their respective
agreements and obligations under the MLC Documents, and the
consummation of the MLC Documents are all duly authorized by all
necessary corporate action on the part of MLC and MagneTek and do not:
(a) contravene any provision of their respective Articles of
Incorporation or Bylaws; (b) conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default under,
or result in the creation of any Lien upon any of the properties of
MLC or MagneTek under, any document creating any Indebtedness other
than the Loan Documents; (c) violate or contravene any provision of
any law, rule or regulation or any order, ruling, or interpretation
thereunder or any decree, order or judgment of any Governmental
Authority; (d) require any waivers, consents or approvals by any of
the creditors or trustees for creditors of MLC or MagneTek or any
other Person other than the Lender; or (e) require any Person to make
any filing under the Hart-Scott-Rodino Antitrust Improvements act of
1976, as amended, or the rules of the Federal Trade Commission
thereunder. "Governmental Authority" means any nation or government,
any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, government or any
agency or instrumentality thereof (including any central bank).
7. Costs and Expenses; Fee. The Borrowers will promptly on demand pay
or reimburse the Lender for the reasonable costs and expenses incurred by
the Lender in connection with this Amendment. The Borrowers will pay to the
Lender an amendment and waiver fee in the amount of $10,000 upon the
Borrowers' and the Guarantors' execution of this Amendment.
8. Release. Each of the Borrowers and the Guarantors hereby releases
the Lender from any and all liabilities, damages and claims arising from or
in any way related to the Loans or any of the Loan Documents, other than
such liabilities, damages and claims which arise after the execution of
this Amendment. The foregoing release does not release or discharge, or
operate to waive performance by, the Lender of its express agreements and
obligations stated in the Loan Documents on and after the date of this
Amendment.
9. Continuing Effect of Credit Agreement. Except as expressly amended
hereby, all of the provisions of the Credit Agreement are ratified and
confirmed and remain in full force and effect.
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10. One Agreement; References; Fax Signature. The Credit Agreement, as
amended by this Amendment, will be construed as one agreement. All
references in any of the Loan Documents to the Credit Agreement will be
deemed to be references to the Credit Agreement as amended by this
Amendment. This Amendment may be signed by facsimile signatures, and if so
signed, (i) may be relied on by each party as if the document were a
manually signed original and (ii) will be binding on each party for all
purposes.
11. Captions. The headings to the Sections of this Amendment have been
inserted for convenience of reference only and shall in no way modify or
restrict any provisions hereof or be used to construe any such provisions.
12. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
13. Entire Agreement. This Amendment, together with the Credit
Agreement and the other Loan Documents, sets forth the entire agreement of
the parties with respect to the subject matter of this Amendment and
supersedes all previous understandings, written or oral, in respect of this
Amendment.
14. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Ohio (without regard
to Ohio conflicts of law principles ).
15. Reaffirmation of Guaranties. The Guarantors hereby each reaffirm
their respective Guaranty and acknowledge and agree that no Guarantor is
released from its obligations under its Guaranty by reason of this
Amendment and that the obligations of the Guarantors under their respective
Guaranties extend to the Credit Agreement and the other Loan Documents as
amended by this Amendment. This reaffirmation of Guaranty shall not be
construed, by implication or otherwise, as imposing any requirement that
the Lender notify or seek the consent of any of the Guarantors relative to
any past or future extension of credit, or modification, extension or other
action with respect thereto, in order for any such extension of credit or
modification, extension or other action with respect thereto to be subject
to the Guaranties, it being expressly acknowledged and reaffirmed that the
Guarantors have under each respective Guaranty consented, among others
things, to modifications, extensions and other actions with respect thereto
without any notice thereof or consent thereto.
16. Other Documents. With the signing of this Amendment, the Borrowers
and the Guarantors will deliver to the Lender (i) the Bill of Sale and
Assignment and all other MLC Documents between MLC and MagneTek, (ii) such
other documents, instruments, and agreements deemed necessary or desirable
by the Lender to effect the amendments to the Borrowers' credit facilities
with the Lender contemplated by this Amendment, and (iii) a Schedule 3.5
listing issued and outstanding Facility LC's having an expiry date beyond
the Facility Termination Date.
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17. Patriot Act Notice. The Lender hereby notifies the Borrowers and
the Guarantors that pursuant to the requirements of the USA Patriot Act
(Title III of Pub.L.10756 (signed into law October 26, 2001)) (the "Act"),
it is required to obtain, verify and record information that identifies the
Borrowers and/or the Guarantors, which information includes the names and
addresses of the Borrowers and the Guarantors and other information that
will allow the Lender to identify such Persons in accordance with the Act.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Borrowers and the Guarantors have executed this
Amendment to be effective as of the date set forth in the opening paragraph of
this Amendment.
THE BORROWERS:
MAGNETEK, INC.
By:/s/
--------------------------------------------
David P. Reiland, Executive Vice President
and Chief Financial Officer
MAGNETEK ADS POWER, INC.
By:/s/
--------------------------------------------
David P. Reiland, President
THE GUARANTORS:
MONDEL ULC
By:/s/
--------------------------------------------
David P. Reiland, President
MAGNETEK MONDEL HOLDING, INC.
By:/s/
--------------------------------------------
David P. Reiland, President
MAGNETEK LEASING CORPORATION
By:
--------------------------------------------
David P. Reiland, President
MAGNETEK NATIONAL ELECTRIC
COIL, INC.
By:/s/
--------------------------------------------
David P. Reiland, President
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Accepted at Cincinnati, Ohio,
as of July __, 2005
JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main Office Chicago))
By:/s/
--------------------------------------------
Jeffrey W. Swartz, Vice President
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Schedule 3.5 Letters of Credit (Expiry Dates Later than Maturity)
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See attached.
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Exhibit 4.1 -- MLC Documents
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See attached.
15
Amended and Restated Schedule 5.9 to Credit Agreement.
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See attached.
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