Exhibit 4.3
AMERICAN BILTRITE, INC.
Amendment No. 2
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This Amendment No. 2, dated as of March 31, 2003 (this "Agreement"),
is among American Biltrite, Inc., a Delaware corporation (the "Company"); K&M
Associates, L.P., a Rhode Island limited partnership (the "Guarantor"); and
The Prudential Insurance Company of America. The parties hereto agree as
follows:
1. Note Agreement; Definitions. This Agreement amends the Note
Purchase and Private Shelf Agreement and Facility Guarantee dated as of August
28, 2001 among the parties hereto (as in effect prior to giving effect to this
Agreement, the "Note Agreement"). Terms defined in the Note Agreement as
amended hereby (the "Amended Note Agreement") and not otherwise defined herein
are used with the meaning so defined.
2. Amendment of Note Agreement. Effective upon the date all the
conditions set forth in Section 4 hereof are satisfied (the "Amendment Date"),
which conditions must be satisfied no later than the date provided therein,
the Note Agreement is amended as follows:
2.1 Amendment of Section 6A(v). Section 6A(v) of the Note Agreement
is amended and restated to read in its entirety as follows:
"(v) Leverage Ratio. The Leverage Ratio to exceed the
following ratios as of the end of the following respective periods:
Quarter(s) Ending Ratio
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September 30, 2001 3.25 to 1.00
December 31, 2001 2.75 to 1.00
March 31, 2002, June 30, 2002 3.25 to 1.00
September 30, 2002 2.75 to 1.00
December 31, 2002 3.25 to 1.00
March 31, 2003 3.35 to 1.00
June 30, 2003 3.00 to 1.00
September 30, 2003 and 2.50 to 1.00"
each fiscal quarter ending thereafter
2.2 Amendment of Section 6A(iii). Section 6A(iii) of the Note
Agreement is amended and restated to read in its entirety as follows:
"(iii) Debt Levels. Debt of the Company and its Restricted
Subsidiaries to exceed the following percentages of Consolidated
Tangible Gross Worth as of the end of the following respective
periods:
Quarter(s) Ending Percentage
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September 30, 2001, December 31, 2001 50%
March 31, 2002, June 30, 2002, 45%
September 30, 2002, December 31, 2002
March 31, 2003 50%
June 30, 2003 and each fiscal quarter 45%"
ending thereafter
3. Representations and Warranties. Each of the Company and the
Guarantor jointly and severally represents and warrants as follows:
3.1 Legal Existence, Organization. Each of the Company and the
Guarantor is duly organized and validly existing and in good standing under
the laws of the jurisdiction of its organization, with all power and
authority, corporate, limited liability company, partnership or otherwise,
necessary (a) to enter into and perform this Agreement and the Amended Note
Agreement, and (b) to own its properties and carry on the business now
conducted or proposed to be conducted by it. Each of the Company and the
Guarantor has taken all corporate, limited liability company, partnership or
other action required to make the provisions of this Agreement and the Amended
Note Agreement the valid and enforceable obligations they purport to be.
3.2 Enforceability. Each of the Company and the Guarantor has duly
authorized, executed and delivered this Agreement. Each of this Agreement and
the Amended Note Agreement is the legal, valid and binding obligation of each
of the Company and the Guarantor and is enforceable against the Company and
the Guarantor in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors rights generally and by general equitable principles (regardless of
whether enforcement is sought in equity or at law).
3.3 No Legal Obstacle to Agreements. Neither the execution,
delivery or performance of this Agreement, nor the performance of the Amended
Note Agreement, nor the consummation of any other transaction referred to or
contemplated by this Agreement, nor the fulfillment of the terms hereof or
thereof, has constituted or resulted in or will constitute or result in:
(a) any breach or termination of any agreement, instrument, deed
or lease to which the Company or any of its Restricted Subsidiaries is a
party or by which it is bound, or of the charter or by-laws of the
Company or any of its Restricted Subsidiaries;
(b) the violation of any law, judgment, decree or governmental
order, rule or regulation applicable to the Company or any of its
Restricted Subsidiaries;
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(c) the creation under any agreement, instrument, deed or lease of
any Lien upon any of the assets of the Company or any of its Restricted
Subsidiaries; or
(d) any redemption, retirement or other repurchase obligation of
the Company or any of its Restricted Subsidiaries under any charter,
by-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or
filing with, any governmental or administrative authority or any
other Person is required to be obtained or made by the Company or any
of its Restricted Subsidiaries in connection with the execution,
delivery and performance of this Agreement or the performance of the
Amended Note Agreement, or the consummation of the transactions
contemplated hereby or thereby, except for any filings which may be
required pursuant to the federal securities laws and regulations.
3.4 Defaults. Immediately before and after giving effect to the
amendments set forth in Section 2 hereof, no Default will exist.
3.5 Incorporation of Representations and Warranties. Except as
disclosed by the Company in any filing with the Securities and Exchange
Commission, the representations and warranties set forth in paragraph 8 of the
Amended Note Agreement are true and correct on the date hereof as if
originally made on and as of the date hereof, except (a) to the extent that
any such representations or warranties speak as of an earlier date, in which
case they shall be true and correct as of such earlier date, and (b) for any
exhibits or schedules to the Note Agreement, which exhibits and schedules
shall be true and correct as of the date of the Note Agreement.
4. Conditions. The effectiveness of this Agreement shall be
subject to the satisfaction of the following conditions, which conditions must
be satisfied no later than May 15, 2003 or this Agreement shall terminate:
4.1. Officer's Certificate. Except as disclosed by the Company in
any filing with the Securities and Exchange Commission, the representations
and warranties of the Company and the Guarantor set forth or incorporated by
reference herein shall be true and correct as of the Amendment Date as if
originally made on and as of the Amendment Date, except (a) to the extent that
any such representations or warranties speak as of an earlier date, in which
case they shall be true and correct as of such earlier date, and (b) for any
exhibits or schedules to the Note Agreement, which exhibits and schedules
shall be true and correct as of the date of the Note Agreement; no Default
shall have occurred on or prior to the Amendment Date; and Prudential shall
have received a certificate to these effects signed by a Responsible Officer
in the event the Amendment Date occurs after the date hereof.
4.2. Payment of Fees and Expenses. The Company shall have paid to
Prudential an amendment fee in an amount equal to $20,000 (the "Amendment
Fee"). As soon as practicable after the execution and delivery of this
Agreement Prudential will pay to the holders of the Notes the apportion of the
Amendment Fee that such holders may be entitled to receive.
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4.3. Proper Proceedings. This Agreement and the transactions
contemplated hereby and thereby shall have been authorized by all necessary
proceedings of the Company and the Guarantor. All necessary consents,
approvals and authorizations of any governmental or administrative agency or
any other Person with respect to any of the transactions contemplated hereby
shall have been obtained and shall be in full force and effect. Prudential
shall have received copies of all documents, including certificates, records
of corporate, limited liability company, partnership or other proceedings and
opinions of counsel, which Prudential may have reasonably requested in
connection therewith, such documents where appropriate to be certified by
proper corporate, limited liability company, partnership or governmental
authorities.
5. General. The Amended Note Agreement and the Notes are each
confirmed as being in full force and effect. This Agreement, the Amended Note
Agreement, the Notes and the documents referred to therein constitute the
entire understanding of the parties with respect to the subject matter hereof
and thereof and supersede all prior and current understandings and agreements,
whether written or oral. This Agreement may be executed in any number of
counterparts, which together shall constitute one instrument, and shall bind
and inure to the benefit of the parties and their respective successors and
assigns. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflicts of law
principles.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
AMERICAN BILTRITE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Vice President
K&M Associates, L.P.
By: AIMPAR, INC., its General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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