SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this Amendment), dated as of September 26, 2011, is entered into by and among WELLS FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, formerly known as Wells Fargo Foothill, LLC, as the administrative agent (in such capacity, Agent) for the Lenders (as defined below), the Lenders, STANADYNE INTERMEDIATE HOLDING CORP., a Delaware corporation (Parent), and STANADYNE CORPORATION, a Delaware corporation (Borrower).
RECITALS
A. Borrower, Parent, the lenders party thereto from time to time (the Lenders) and Agent have previously entered into that certain Credit Agreement dated as of August 13, 2009 (as the same may be modified, supplemented or amended from time to time, the Credit Agreement), pursuant to which the Lenders have made certain loans and financial accommodations available to Borrower. Terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
B. Borrower has requested that Agent and the Lenders amend the Credit Agreement which Agent and the Lenders are willing to do pursuant to the terms and conditions set forth herein.
C. Borrower and Parent are entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Agents or any Lenders rights or remedies as set forth in the Credit Agreement are being waived or modified by the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendments to Credit Agreement.
(a) The following definition is hereby added to Schedule 1.1 of the Credit Agreement in proper alphabetical order:
Inventory Block means an amount equal to $1,500,000, or such lesser amount as determined from time to time by Agent in its sole discretion.
(b) Clause (b) of the definition of Borrowing Base set forth in Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(b) the result of:
(i) | the lowest of: |
(A) | $10,000,000, |
(B) | 100% of the amount of credit availability created by clause (a) above and by clause (a) of the EXIM Borrowing Base, and |
(C) | the result of: |
(1) | the lesser of: |
(I) | 65% of the value of Eligible Inventory consisting of finished goods (other than any service parts), and |
(II) | 85% times the most recently determined Finished Goods Net Liquidation Percentage times the book value of Borrowers Eligible Inventory consisting of finished goods (other than any service parts), plus |
(2) | the lesser of: |
(I) | 65% of the value of Eligible Inventory consisting of raw materials, and |
(II) | 85% times the most recently determined Raw Materials Net Liquidation Percentage times the book value of Borrowers Eligible Inventory consisting of raw materials, plus |
(3) | the lowest of: |
(I) | $1,500,000, |
(II) | 65% of the value of Eligible Inventory consisting of service parts, and |
(III) | 85% times the most recently determined Service Parts Net Liquidation Percentage times the book value of Borrowers Eligible Inventory consisting of service parts, plus |
(4) | the lowest of: |
(I) | $4,000,000, |
(II) | 65% of the value of Eligible WIP Inventory, and |
(III) | 85% times the most recently determined WIP Net Liquidation Percentage times the book value of Borrowers Eligible WIP Inventory, minus |
(ii) | the Inventory Block, plus |
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(c) The definition of Commitment set forth in Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
Commitment means, with respect to each Lender, its Revolver Commitment, and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Lenders name under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement. Notwithstanding anything to the contrary in this Agreement or on Schedule C-1, (A) the aggregate amount of the Commitment of each Lender hereunder shall be deemed to be temporarily reduced by the amount of the EXIM Commitment, proportionate to such Lenders Pro Rata Share, and (B) the aggregate amount of the Commitments under this Agreement combined with the aggregate amount of Commitments (as defined in the EXIM Credit Agreement) shall not exceed $35,000,000.
(d) The definition of Maximum Revolver Amount set forth in Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
Maximum Revolver Amount means, as of any date of determination, $35,000,000, decreased by: (a) the amount of the EXIM Commitment as of such date, and (b) the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement.
(e) The definition of Revolver Commitment set forth in Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
Revolver Commitment means, with respect to each Lender, its Revolver Commitment, and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Lenders name under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement. Notwithstanding anything to the contrary in this Agreement or on Schedule C-1, (A) the aggregate amount of the Revolver Commitment of each Lender hereunder shall be deemed to be temporarily reduced by the amount of the EXIM Commitment, proportionate to such Lenders Pro Rata Share, and (B) the aggregate amount of the Revolver Commitments under this Agreement combined with the aggregate amount of Revolver Commitments (as such term is used in the EXIM Credit Agreement) shall not exceed $35,000,000.
(f) Section 2.1(c) of the Credit Agreement is hereby amended and restated in its entirety in its entirety to read as follows:
(c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the right in its Permitted Discretion to establish reserves against the Borrowing Base in such amounts, and with respect to such matters, as Agent in its Permitted Discretion shall deem necessary or appropriate, including, without limitation, the EXIM Reserves and reserves with respect to (i) sums that Parent or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, and (ii) amounts owing by Parent or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a
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Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to Agents Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral. Agent may maintain all or any portion of a reserve under this Agreement or under the EXIM Credit Agreement (or any combination thereof) as Agent may elect from time to time in its Permitted Discretion.
(g) Schedule C-1 to the Credit Agreement is hereby amended and replaced with Schedule C-1 attached hereto.
2. Conditions Precedent to Effectiveness of this Amendment. This Amendment shall not become effective until all of the following conditions precedent shall have been satisfied or waived by Agent:
(a) Amendment. Agent shall have received this Amendment fully executed in a sufficient number of counterparts for distribution to all parties.
(b) Amendment Fee. Agent shall have received a non-refundable amendment fee in the amount of Seventy-Five Thousand One Hundred Dollars ($75,100), which fee is fully earned as of, and due and payable on, the date hereof.
(c) Amendment to EXIM Credit Agreement. Agent shall have received an amendment to the EXIM Credit Agreement, in form and substance satisfactory to Agent, fully executed by Borrower and Parent (the EXIM Amendment).
(d) EXIM Bank. Agent shall have received the approval of the EXIM Bank, in form and substance reasonably satisfactory to Agent, for the transactions evidenced by this Amendment and the EXIM Amendment.
(e) Representations and Warranties. The representations and warranties set forth herein and in the Credit Agreement (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) must be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof).
(f) Other Required Documentation. Agent shall have received all other documents and legal matters in connection with the transactions contemplated by this Amendment and such documents shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent.
3. Representations and Warranties. Each of Borrower and Parent represents and warrants to the Agent and the Lenders as follows:
(a) Authority. Each of Borrower and Parent has the requisite corporate power and authority to execute and deliver this Amendment, and to perform its obligations hereunder
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and under the Loan Documents (as amended or modified hereby) to which it is a party. The execution, delivery and performance by each of Borrower and Parent of this Amendment have been duly approved by all necessary corporate action, have received all necessary governmental approval, if any, and do not contravene any law or any contractual restriction binding on any Borrower or Parent. No other corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by each of Borrower and Parent. This Amendment and each Loan Document (as amended or modified hereby) is the legal, valid and binding obligation of each of Borrower and Parent, enforceable against each of Borrower and Parent in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally), and is in full force and effect.
(c) Representations and Warranties. The representations and warranties contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof as though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that constitutes a Default or Event of Default.
4. Choice of Law. The validity of this Amendment, the construction, interpretation, and enforcement hereof, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York.
5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
6. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to this Agreement, hereunder, hereof or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the Credit Agreement, thereof or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.
(b) Except as specifically set forth in this Amendment, the Credit Agreement and all other Loan Documents, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of each of Borrower and Parent to Agent and Lenders without defense, offset, claim or contribution.
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(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of Agent or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
7. Ratification. Each of Borrower and Parent hereby ratify and confirm in all respects the Credit Agreement, as amended hereby, and the Loan Documents effective as of the date hereof.
8. Estoppel. To induce Agent and Lenders to enter into this Amendment and to induce Agent and Lenders to continue to make advances to Borrower under the Credit Agreement, each of Borrower and Parent hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, there exists no Default or Event of Default and no right of offset, defense, counterclaim or objection in favor of either of Borrower or Parent as against Agent or any Lender with respect to the Obligations.
9. Integration. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
10. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
11. Submission of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by Agent or any Lender to waive any of their respective rights and remedies under the Loan Documents, and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
STANADYNE INTERMEDIATE HOLDING CORP., | ||
a Delaware corporation | ||
By: | /s/ Stephen S. Langin | |
Name: | Stephen S. Langin | |
Title: | Vice President, Chief Financial Officer and Secretary | |
STANADYNE CORPORATION, | ||
a Delaware corporation | ||
By: | /s/ Stephen S. Langin | |
Name: | Stephen S. Langin | |
Title: | Vice President, Chief Financial Officer and Secretary | |
WELLS FARGO CAPITAL FINANCE, LLC, | ||
a Delaware limited liability company, as Agent and as a Lender | ||
By: | /s/ Jason Shanahan | |
Name: | Jason Shanahan | |
Title: | Vice President |
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SCHEDULE C-1
COMMITMENTS
Lender | Revolver Commitment1 | Commitment2 | ||||||
Wells Fargo Foothill, LLC | $ | 35,000,000 | $ | 35,000,000 | ||||
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All Lenders | $ | 35,000,000 | $ | 35,000,000 | ||||
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1 | Notwithstanding the following, (A) the aggregate amount of the Revolver Commitment of each Lender hereunder shall be deemed to be temporarily reduced by the amount of the EXIM Commitment, proportionate to such Lenders Pro Rata Share, and (B) the aggregate amount of the Revolver Commitments under this Agreement combined with the aggregate amount of Revolver Commitments (as such term is used in the EXIM Credit Agreement) shall not exceed $35,000,000. |
2 | Notwithstanding the following, (A) the aggregate amount of the Commitment of each Lender hereunder shall be deemed to be temporarily reduced by the amount of the EXIM Commitment, proportionate to such Lenders Pro Rata Share, and (B) the aggregate amount of the Commitments under this agreement combined with the aggregate amount Commitments (as defined in the EXIM Credit Agreement) shall not exceed $35,000,000. |
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