EXHIBIT 10.54
THIRD AMENDMENT TO RESTATED CREDIT AGREEMENT
(And Waiver)
THIS DOCUMENT is entered into as of July 30, 1999, between MAGNETEK, INC.,
a Delaware corporation ("BORROWER"), certain Lenders, BANK OF AMERICA, N.A.
(formerly NationsBank, N.A., formerly NationsBank of Texas, N.A., "AGENT"), as
Agent for Lenders, and BANKERS TRUST COMPANY, CIBC INC., CREDIT LYONNAIS - NEW
YORK BRANCH, THE FIRST NATIONAL BANK OF CHICAGO, GENERAL ELECTRIC CAPITAL
CORPORATION (assignee of The Long-Term Credit Bank of Japan, Ltd.), and UNION
BANK OF CALIFORNIA, N.A., as Co-Agents for Lenders.
Borrower, Agent, Co-Agents, and Lenders are party to the Restated Credit
Agreement (as renewed, extended, and amended, the "CREDIT AGREEMENT") dated as
of June 20, 1997, providing for a revolving credit facility. Borrower, Agent,
and Determining Lenders have agreed, upon the following terms and conditions, to
(1) the amendments described in PARAGRAPH 2 below in order to, among other
things, permit the sale of certain assets and provide for a reduction in the
total Commitments, and (2) the waiver described in PARAGRAPH 3 below.
Accordingly, for adequate and sufficient consideration, Borrower, Agent, and
Determining Lenders agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this document (A) terms
defined in the Credit Agreement have the same meanings when used in this
document and (B) references to "SECTIONS," "SCHEDULES," and "EXHIBITS" are to
the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENTS.
(A) SECTION 9.11 is amended by (1) deleting the word "AND" before CLAUSE
(i) in that section and (2) adding the following to the end of that section:
, AND (j) THE SALE BY BORROWER AND ITS SUBSIDIARY, MAGNETEK SERVICE
(U.K.), LIMITED, OF SUBSTANTIALLY ALL OF THE ASSETS, PROPERTIES, AND
INTERESTS IN PROPERTIES AND RIGHTS USED IN THE DOMESTIC BUSINESS OF
DEVELOPING, MANUFACTURING, SELLING, AND DISTRIBUTING FRACTIONAL,
INTEGRAL, AND DC ELECTRIC MOTORS AND THE CAPITAL STOCK OF MAGNETEK
HUNGARIAN KFT, IGMEX, S.A. DE C.V., MAGNETEK UNIVERSAL ELECTRIC
LIMITED, MAGNETEK CANADA LIMITED, MAGNETEK (SEA) PTE LTD., AND
MAGNETEK B.V. (COMPANIES FORMED, RESPECTIVELY, UNDER THE LAWS OF
HUNGARY, MEXICO, THE UNITED KINGDOM, CANADA, SINGAPORE, AND THE
NETHERLANDS) TO ▇.▇. ▇▇▇▇▇ CORPORATION FOR UP TO $253,000,000 PURSUANT
TO THE ASSET PURCHASE AGREEMENT DATED AS OF JUNE 28, 1999, BETWEEN
BORROWER, MAGNETEK SERVICE (U.K.), LIMITED, AND ▇.▇. ▇▇▇▇▇
CORPORATION, SO LONG AS (i) BORROWER DELIVERS TO AGENT ON THE DAY THAT
THE SALE IS FULLY CONSUMMATED A CERTIFICATE OF A RESPONSIBLE OFFICER
CERTIFYING THAT THE SALE HAS BEEN FULLY CLOSED AS OF THE DATE STATED
IN THE CERTIFICATE AND THE AMOUNT OF THE NET PROCEEDS RECEIVED FROM
SUCH SALE (I.E., THE FULL GROSS PROCEEDS LESS ORDINARY ATTORNEYS' FEES
AND OTHER CLOSING COSTS, BUT NOT LESS THAN $249,000,000), AND (ii) BY
NO LATER THAN THE BUSINESS DAY FOLLOWING THE DAY ON WHICH THAT SALE IS
CONSUMMATED, THOSE PROCEEDS ARE APPLIED, TO THE EXTENT NECESSARY, TO
PREPAY IN FULL THE PRINCIPAL DEBT IN ACCORDANCE WITH SECTION 3.2(b)
WITHOUT REGARD TO THE INTEGRAL MULTIPLE REQUIREMENT IN THAT SECTION.
THIRD AMENDMENT
(B) Notwithstanding the prepayment required by PARAGRAPH 2(A) above, the
total Commitments are not terminated by that prepayment but will be reduced to
$200,000,000 upon the consummation of the sale to ▇.▇. ▇▇▇▇▇ Corporation as
contemplated in that paragraph as further provided in the attached AMENDED
SCHEDULE 2.1.
(C) For purposes of SECTION 14.2, Agent's address on the signature page of
the Credit Agreement is entirely amended as follows:
BANK OF AMERICA, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
PRINCIPAL
FAX: ▇▇▇-▇▇▇-▇▇▇▇
(D) SCHEDULES 2.1 and 7.3 are entirely amended in the forms of, and each
reference to those schedules in the Credit Agreement are now to, the attached
AMENDED SCHEDULES 2.1 and 7.3, respectively.
3. WAIVER. Upon and subject to the following terms and conditions and only for
the period (the "WAIVER PERIOD") from the date that the sale to ▇.▇. ▇▇▇▇▇
Corporation described in PARAGRAPH 2(A) above is fully consummated (if ever)
through and including September 29, 1999, Determining Lenders waive any
Potential Default or Default that may exist solely as a result of Borrower's
failure to be in compliance with any of the financial covenants in SECTIONS 10.2
and 10.3 during or at the end of the Waiver Period but not thereafter.
(A) During the Waiver Period, Borrower covenants and agrees that (1)
Borrower shall not be entitled to request, and neither Agent nor any Lender
shall be required to grant, any releases of any Collateral as provided in
SECTION 5.5, and (2) Borrower shall not be entitled to, and shall not, use the
proceeds of any Borrowings under the Credit Agreement for the redemption or
repurchase any of its capital stock under SECTION 9.10 or otherwise.
(B) Except as expressly stated, this PARAGRAPH 3 is not a waiver of
existing or future Potential Defaults or existing Defaults or a waiver of
Agent's or any Lender's Rights to insist upon compliance by all other relevant
parties with each Loan Document.
4. CONDITIONS PRECEDENT. PARAGRAPHS 2 and 3 above are not effective until Agent
receives (A) counterparts of this document executed by Borrower and Determining
Lenders, (B) an amendment fee to be paid to each Lender who has executed and
delivered to Agent a counterpart of this document by 5:00 p.m. Atlanta time on
July 30, 1999, equal to 0.05% of that Lender's Commitment as it is to be reduced
effective as of the consummation of the sale to ▇.▇. ▇▇▇▇▇ Corporation described
in PARAGRAPH 2(A), and (C) a fully executed copy of the final Asset Purchase
Agreement with ▇.▇. ▇▇▇▇▇ Corporation and all attachments and amendments to it.
5. RATIFICATIONS. Borrower (A) ratifies and confirms all provisions of the Loan
Documents as amended by this document, (B) ratifies and confirms that, (except
in respect of the release of Lender Liens on the assets described in PARAGRAPH 2
above and as permitted by SECTION 5.5(b)), all guaranties, assurances, and Liens
granted, conveyed, or assigned to Agent under the Loan Documents are not
released, reduced, or
2 THIRD AMENDMENT
otherwise adversely affected by this document and continue to guarantee, assure,
and secure full payment and performance of the present and future Obligation,
and (C) agrees to perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record such additional documents and certificates as Agent
may request in order to create, perfect, preserve, and protect those guaranties,
assurances, and Liens.
6. REPRESENTATIONS. To induce Agent, Co-Agents, and Lenders to enter into this
document, Borrower represents and warrants to Agent, Co-Agents, and Lenders that
as of the date of this document (A) all representations and warranties in the
Loan Documents are true and correct in all material respects EXCEPT to the
extent that any of them speak to a different specific date or the facts on which
any of them were based have been changed by transactions contemplated or
permitted by the Credit Agreement, (B) no Material Adverse Event, Default, or
Potential Default exists, C) MagneTek Financial Services, Inc., has been
dissolved and all of its assets have been transferred to Borrower, and (D)
Borrower is the only Domestic Restricted Company.
7. EXPENSES. Borrower shall pay all costs, fees, and expenses paid or incurred
by Agent incident to this document, including, without limitation, the
reasonable fees and expenses of Agent's counsel in connection with the
negotiation, preparation, delivery, and execution of this document and any
release or other related documents.
8. MISCELLANEOUS. All references in the Loan Documents to the "CREDIT
AGREEMENT" refer to the Credit Agreement as amended by this document. This
document is a "LOAN DOCUMENT" referred to in the Credit Agreement, and the
provisions relating to Loan Documents in SECTIONS 1 and 14 of the Credit
Agreement are incorporated in this document by reference. Except as
specifically amended by this document, the Credit Agreement is unchanged and
continues in full force and effect. This document may be executed in any
number of counterparts with the same effect as if all signatories had signed
the same document. All counterparts must be construed together to constitute
one and the same instrument. This document binds and inures to each of the
undersigned and their respective successors and permitted assigns, subject to
the terms of the Credit Agreement. THIS DOCUMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
3 THIRD AMENDMENT
EXECUTED as of the date first stated in this Third Amendment to Restated
Credit Agreement.
MAGNETEK, INC., as BORROWER BANK OF AMERICA, N.A. (formerly
NationsBank, N.A., formerly
NationsBank of Texas, N.A.), as AGENT
and a LENDER
By ______________________________ By __________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Vice President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Principal
and Treasurer
BANKERS TRUST COMPANY, as a CO-AGENT CIBC INC., as a CO-AGENT and a LENDER
and A LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
CREDIT LYONNAIS - NEW YORK BRANCH, as THE FIRST NATIONAL BANK OF CHICAGO, as
a CO-AGENT and a LENDER a CO-AGENT and a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
GENERAL ELECTRIC CAPITAL UNION BANK OF CALIFORNIA, N.A., as a
CORPORATION (assignee of The Long-Term CO-AGENT and a LENDER
Credit Bank of Japan, Ltd.), as a
CO-AGENT and a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
ARAB BANKING CORPORATION (B.S.C.), as a BANK AUSTRIA CREDITANSTALT CORPORATE
LENDER FINANCE, INC., as a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
By __________________________________
Name:_____________________________
Title:____________________________
SIGNATURE PAGE
PAGE 1 OF 2
FIRST UNION NATIONAL BANK, as a FUJI BANK, LIMITED, ATLANTA AGENCY,
LENDER as a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
NATEXIS BANQUE (formerly Banque SOCIETE GENERALE, SOUTHWEST AGENCY,
Francaise du Commerce Exterieur), as a LENDER
as a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
By ______________________________
Name:_________________________
Title:________________________
THE SUMITOMO BANK, LIMITED, as BANK HAPOALIM, (assignee, in part,
a LENDER of Societe Generale, Southwest
Agency), as a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
CREDIT AGRICOLE INDOSUEZ (formerly THE TOKAI BANK, LTD. NEW YORK BRANCH,
Caisse Nationale de Credit Agricole), as a LENDER
as a LENDER
By ______________________________ By __________________________________
Name:_________________________ Name:_____________________________
Title:________________________ Title:____________________________
By ______________________________
Name:_________________________
Title:________________________
SIGNATURE PAGE
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