THIRD AMENDMENT OF FINANCING AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT OF FINANCING AGREEMENT
THIS
THIRD AMENDMENT OF THE FINANCING AGREEMENT, dated as of December 22, 2005
(this
"Amendment"),
is by
and among each of the lenders that from time to time is a party hereto (such
lenders, each individually a "Lender"
and
collectively, the "Lenders"),
Fortress Credit Corp., as administrative agent for the Lenders (in such
capacity, together with its successors and assigns, if any, for the benefit
of
the Agents and the Lenders in such capacity, the "Administrative
Agent"),
Fortress Credit Corp., as collateral agent (in such capacity, together with
its
successors and assigns, if any, in such capacity, the "Collateral
Agent",
and
together with the Administrative Agent, each an "Agent"
and
collectively the "Agents")
and
Modtech Holdings, Inc., a Delaware corporation (the "Parent"
or
"Borrower").
RECITALS:
WHEREAS,
the parties hereto are parties to that certain Financing Agreement dated
as of
February 25, 2005 as amended by the First Amendment and Waiver, dated as
of
August 5, 2005 and as amended by the Second Amendment, dated as of
September 19, 2005 (as so amended, the "Financing
Agreement");
WHEREAS,
the Borrower has requested that the Lenders amend certain provisions of the
Financing Agreement and the Lenders, subject to the terms and conditions
set
forth herein, are willing to grant such requests;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants herein
contained, the parties hereto agree as follows:
SECTION
1. Defined
Terms. Unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings given them in the Financing Agreement.
SECTION
2. Amendments
to the Financing Agreement.
The
Financing Agreement is, as of the Third Amendment Effective Date (as defined
below), hereby amended as follows:
1. Section
1.01 of the Financing Agreement (Definitions) is hereby amended by adding
the
following new definitions thereto in their appropriate alphabetical
order:
"Consolidated
EBITDA"
means,
with respect to any Person and its Subsidiaries for any period, the Consolidated
Net Income of such Persons for such period, plus (i) without duplication,
the
sum of the following amounts of such Persons for such period to the extent
deducted in determining Consolidated Net Income of such Persons for such
period:
(A) Consolidated Net Interest Expense, (B) income tax expense, (C) depreciation
expense and (D) amortization expense; provided, that for purposes of Sections
7.03(b) and (d) Consolidated EBITDA shall be deemed to be Consolidated EBITDA
for the 12 month period most recently ended; provided further that for purposes
of Section 7.03(a), Consolidated EBITDA for
the
monthly periods ending January 2006 through December 2006 shall
be
deemed to be EBITDA
calculated on a cumulative year-to-date basis and
for
all periods thereafter, Consolidated EBITDA shall be deemed to be Consolidated
EBITDA for the 12 month period most recently ended.
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"Third
Amendment Effective Date"
shall
mean the date on which all of the conditions
precedent set forth in Section 3 thereof are satisfied.
2. Section
2.03(e)
is
amended by deleting it in its entirety and replacing it with the following:
The
outstanding principal of the Term Loan shall be repayable (x) in a $1,000,000
payment on January 1, 2006, (y) in consecutive monthly installments, on the
first Business Day of each month of the calendar year commencing on February
1,
2006 and continuing thereafter until the Final Maturity Date, each in an
amount
equal to $333,333 and (z) in one final installment on the Final Maturity
Date and shall be in the amount necessary to repay in full the unpaid principal
amount of the Term Loans.
2. Section
7.03(a) (Minimum EBITDA) amended by deleting it in its entirety and replacing
it
with the following: Permit Consolidated EBITDA of the Parent for the month
ending on the last day of the month set forth below to be less than the amount
set forth opposite such date:
|
Fiscal
Month Ending:
|
Minimum
Consolidated EBITDA:
|
|
January
2006
|
$1,875,000
|
|
February
2006
|
$3,725,000
|
|
March
2006
|
$6,100,000
|
|
April
2006
|
$8,275,000
|
|
May
2006
|
$10,450,000
|
|
June
2006
|
$13,400,000
|
|
July
2006
|
$15,650,000
|
|
August
2006
|
$17,875,000
|
|
September
2006
|
$21,000,000
|
|
October
2006
|
$23,300,000
|
|
November
2006
|
$25,650,000
|
|
December
2006
|
$28,720,000
|
|
January
2007
|
$28,900,000
|
|
February
2007
|
$29,000,000
|
|
March
2007
|
$29,200,000
|
|
April
2007
|
$29,125,000
|
|
May
2007
|
$29,000,000
|
|
June
2007
|
$28,825,000
|
|
July
2007
|
$28,475,000
|
|
August
2007
|
$28,100,000
|
|
September
2007
|
$27,500,000
|
|
October
2007
|
$26,875,000
|
|
November
2007
|
$26,175,000
|
|
December
2007
|
$25,250,000
|
|
January
2008
|
$24,900,000
|
|
February
2008
|
$25,250,000
|
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SECTION
3. Conditions
Precedent to Effectiveness of Amendment.
This
Amendment shall become effective upon the date (the "Third
Amendment Effective Date")
when
each of the following conditions have been satisfied:
1. Execution
of Amendment.
Borrower and each Lender shall have executed and delivered this Amendment
(whether the same or different counterparts).
2. Amendment
Fee.
On or
prior to the Third Amendment Effective Date, the Borrower shall pay to the
Administrative Agent for the account of the Lenders, a non-refundable fee
(the
"Amendment
Fee")
equal
to $500,000, which shall be deemed fully earned on the Third Amendment Effective
Date.
3. Representations
and Warranties. Borrower shall have delivered an officer's certificate of
an
Authorized Officer certifying that the matters set forth Section 4 are true,
correct and complete.
SECTION
4. Representations
and Warranties of Borrower.
Borrower represents and warrants to the Lenders that the following statements
are true, correct and complete as follows:
1. The
representations and warranties contained in Section 6.01 of the Financing
Agreement are true and correct in all material respects at and as of the
date
hereof as though made on and as of the date hereof.
2. Before
and after giving effect to this Amendment, no Event of Default or Default
is
continuing.
3. The
execution, delivery and performance of this Amendment has been duly authorized
by all necessary action on the part of, and duly executed and delivered by,
the
Borrower and this Amendment is a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, except
as the enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity (regardless
of
whether such enforcement is sought in a proceeding in equity or at
law).
4. The
execution, delivery and performance of this Amendment and the fulfillment
of and
compliance with the respective terms hereof by the Borrower does not and
will
not (a) conflict with or result in a breach of any term, condition or
provision of or (b) require any authorization, consent, approval, exemption
or other action by or notice to any Governmental Entity or any other Person
pursuant to the Certificate of Incorporation or bylaws or memorandum and
articles of association of Borrower, or any Law, statute, rule or regulation
to
which Borrower is subject, or any agreement to which Borrower is subject
(other
than those which have been obtained on or prior to the date
hereof).
5. Borrower
has obtained all necessary corporate, governmental, regulatory and other
third
party consents and approvals required in connection with its execution, delivery
and performance of this Amendment and any other documents to be executed
by
Borrower pursuant hereto.
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SECTION
5. References
to and Effect on the Financing Agreement.
1. On
and
after the Third Amendment Effective Date each reference in the Financing
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words
of like
import, and each reference to the Financing Agreement in the other documents
(the "Ancillary
Documents")
delivered in connection with the Financing Agreement shall mean and be a
reference to the Financing Agreement as amended hereby.
2. Except
as
specifically amended above, the Financing Agreement and all other Ancillary
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
3. 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
the holders of Loans under the Financing Agreement or the Ancillary
Documents.
4. This
Amendment shall be binding on the Borrower and the Lenders and shall inure
to
the benefit of the Borrower and the Lenders and the successors and assigns
of
the Lenders.
SECTION
6. Expenses.
Borrower agrees to reimburse the Lenders upon demand for all expenses,
reasonable fees of attorneys, and reasonable legal expenses, reasonably incurred
by the Lenders in the review, preparation, negotiation and execution of this
Amendment and any other document required to be furnished herewith, and in
enforcing the obligations of the Borrower hereunder, which obligations of
the
Borrower shall survive any termination of the Financing Agreement.
SECTION
7. Execution
in Counterparts.
This
Amendment may be executed in 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 instrument. This Amendment shall be
binding upon the respective parties hereto upon the execution and delivery
of
this Amendment by the Borrower and the Lenders. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this
Amendment.
SECTION
8. Release.
Borrower does hereby release and forever discharge each of the Lenders and
each
affiliate thereof and each of their respective employees, officers, directors,
trustees, agents, attorneys, successors, assigns or other representatives
from
any and all claims, demands, damages, actions, cross-actions, causes of action,
costs and expenses (including legal expenses), of any kind or nature whatsoever,
whether based on law or equity, which any of said parties has held or may
now or
in the future own or hold, whether known or unknown, for or because of any
matter or thing done, omitted or suffered to be done on or before the actual
date upon which this Amendment is signed by any of such parties (i) arising
directly or indirectly out of the Financing Agreement or any other documents,
instruments or any other transactions relating thereto and/or (ii) relating
directly or indirectly to all transactions by and between the Borrower or
its
representatives and each Lender or any of their respective directors, officers,
agents, employees, attorneys or other representatives. Such release, waiver,
acquittal and discharge shall and does include, without limitation, any claims
of usury, fraud, duress, misrepresentation, lender liability, control, calling
of the Financing Agreement s into default, exercise of remedies and all similar
items and claims, which may, or could be, asserted by the Borrower.
SECTION
9. Governing
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION
10. Headings.
Section
headings in this Amendment are included herein for convenience of reference
only
and shall not constitute a part of this Amendment for any other
purposes.
*
* * *
*
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized as of the
date
above first written.
MODTECH
HOLDINGS, INC.
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
CFO
FORTRESS
CREDIT CORP.
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:
Chief Credit Officer
ABLECO
FINANCE LLC, ON BEHALF OF ITSELF AND ITS AFFILIATE ASSIGNEES
By:
[Illegible]
Its:
Vice
President