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EXHIBIT 10.29
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") to the Loan and Security
Agreement is entered into as of the 1st day of January, 1997, by and between
XxXxxxx Steel Company, Eballoy Glass Products Company, Erie Bronze & Aluminum
Company, and XxXxxxx International, Inc., as borrowers (the foregoing shall be
referred to herein collectively as "Borrowers" and separately as a "Borrower"),
Centrum Industries, Inc. and XxXxxxx Services, Inc., as guarantors
(collectively the "Guarantors" and separately a "Guarantor"), and The
Huntington National Bank (the "Bank").
RECITALS:
A. As of February 29, 1996, the Borrowers, the Guarantors and the
Bank executed a certain Loan and Security Agreement (hereinafter the "Loan
Agreement"), setting forth the terms of certain extensions of credit to the
Borrowers; and
B. As of February 29, 1996, the Borrowers executed and delivered
to the Bank, inter alia, a revolving note in the original principal sum of
Fifteen Million Five Hundred Thousand Dollars ($15,500,000.00) (hereinafter the
"Revolving Note"); and
C. As of February 29, 1996, the Borrowers executed and delivered
to the Bank, inter alia, a commercial loan note in the original principal sum
of Two Million Eight Hundred Fifty Thousand Dollars ($2,850,000.00)
(hereinafter the "Term Note") (the Revolving Note and the Term Note are
hereinafter referred to as the "Note"); and
D. In connection with the Loan Agreement and the Note, the
Borrowers executed and delivered to the Bank certain other loan documents, a
reimbursement agreement, open-end mortgages, assignment of rents and security
agreements, a second mortgage, assignment of rents and security agreement,
lockbox agreements, consents, assignments, security agreements, agreements,
instruments and financing statements in connection with the indebtedness
referred to in the Loan Agreement (all of the foregoing, together with the Note
and the Loan Agreement, are hereinafter collectively referred to as the "Loan
Documents"); and
E. The Borrowers have requested modifications to certain
provisions in the Loan Agreement, and the Borrowers and the Bank are willing to
do so upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto for
themselves and their successors and assigns do hereby agree, represent and
warrant as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Loan Agreement.
2. Section 1.2, "Borrowing Base," of the Loan Agreement is hereby
amended to recite in its entirety as follows:
1.2 Borrowing Base. The principal balance of the
Revolving Loans made to any Borrower, plus the aggregate
stated value outstanding at any time of Letter of Credit
issued for such Borrower, shall not exceed such Borrower's
Borrowing Base. "Borrowing Base" shall mean, with respect to
any Borrower, the sum of the following with respect to such
Borrower (a) 70% of Eligible Raw Materials Inventory not to
exceed the Consolidated Eligible Raw Materials Inventory Cap;
plus (b) 60% of Eligible Material Content of WIP Inventory not
to exceed the Consolidated Eligible Material Content WIP
Inventory Cap, plus (c) the Eligible Equipment Availability,
plus (d) 85% of Eligible Accounts (collectively the "Borrowing
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Base"). "Consolidated Eligible Raw Materials Inventory Cap"
means an amount not to exceed $3,500,000 with respect to the
Eligible Raw Materials Inventory of all of the Borrowers in
the aggregate. "Consolidated Eligible Material Content of WIP
Inventory Cap" means an amount not to exceed $1,500,000 with
respect to the Eligible Material Content of WIP Inventory of
all of the Borrowers in the aggregate. The Bank, in its sole
good faith discretion, reserves the right upon notice to the
Borrowers to increase or decrease the foregoing percentages or
the maximum dollar amount attributable to the Consolidated Raw
Materials Inventory Cap or the Consolidated Eligible Material
Content of WIP Inventory Cap. "Eligible Equipment
Availability" shall mean with respect to Eligible Equipment
the following amounts with respect to the following periods:
(i) from the date of this Agreement through and including
December 30, 1996, with respect to MSC, the sum of
$3,700,000, with respect to EBA, the sum of $767,000,
and with respect to Eballoy, the sum of $283,000,
(ii) beginning December 31, 1996, and continuing through
and including December 30, 1997, with respect to MSC,
the sum of $3,083,333, with respect to EBA, the sum
of $586,500, and with respect to Eballoy, the sum of
$235,833,
(iii) beginning December 31, 1997, and continuing through
and including December 30, 1998, and with respect to
MSC, the sum of $2,466,667, with respect to EBA, the
sum of $406,000, with respect to Eballoy, the sum of
$188,667, and
(iv) beginning December 31, 1998, and continuing at all
times thereafter, with respect to MSC, the sum of
$1,850,000, with respect to EBA, the sum of $225,500,
and with respect to Eballoy, the sum of $141,500,
minus with respect to each applicable period the appraised
value of any Equipment that is sold, transferred or disposed
of pursuant to the terms of this Agreement or becomes obsolete
after December 27, 1995.
3. Schedule 6.11 referenced in Section 6.11, "Compensation of
Officers and Affiliated Persons," of the Loan Agreement is hereby amended and
replaced with the Schedule 6.11 attached hereto and incorporated herein by this
reference.
4. Section 6.19, "Operating Lease Rentals," of the Loan Agreement
is hereby amended to recite in its entirety as follows:
6.19 Operating Lease Rentals. The Borrowers and MSI have
entered into the operating leases as set forth in Schedule
6.19 attached hereto The Borrowers and MSI, on a consolidated
basis, will not without the prior written approval of the Bank
enter into operating leases providing in the aggregate for
annual rentals which exceed $200,000.00.
5. Section 6.22, "Accounts Payable Turnover Days," of the Loan
Agreement is hereby amended to recite in its entirety as follows:
6.22 Accounts Payable Turnover Days. At any time, on a
consolidated basis, the Borrower's Accounts Payable Turnover
Days shall not exceed 70. "Accounts Payable Turnover Days"
shall mean the ratio of such Borrower's (a) average month-end
balance of trade
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accounts payable for such period, to (b) the Average Daily
Cost of Sales for such period. "Average Daily Cost of Sales"
shall mean the total cost of sales for such period divided by
the number of days in such period. Such ratio shall be
determined as of the last day of each month for the twelve
month period ending on such date or, if fewer than twelve
months have occurred since the date of this Agreement, for the
period from the date of this Agreement to such date.
6. Conditions of Effectiveness. This Amendment shall become
effective as of January 1, 1997, upon satisfaction of all of the following
condition:
(a) The Bank shall have received two duly executed copies of the
First Amendment to Loan and Security Agreement and such other certificates,
instruments, documents, agreements, and opinions of counsel as may be required
by the Bank, each of which shall be in form and substance satisfactory to the
Bank and its counsel; and
(b) The representations contained in paragraph 7 below shall be
true and accurate.
7. Representations. Each of the Borrowers represents and
warrants that after giving effect to this Amendment (a) each and every one of
the representations and warranties made by or on behalf of such Borrower in the
Loan Agreement or the Loan Documents is true and correct in all respects on and
as of the date hereof, except to the extent that any of such representations
and warranties related, by the expressed terms thereof, solely to a date prior
hereto; (b) such Borrower has duly and properly performed, complied with and
observed each of its covenants, agreements and obligations contained in the
Loan Agreement and Loan Documents; and (c) no event has occurred or is
continuing, and no condition exists which would constitute an Event of Default
or Pending Default.
8. Amendment to Loan Agreement. (a) Upon the effectiveness of
Section 2 through Section 5 hereof, each reference in the Loan Agreement to
"Loan and Security Agreement," "Loan Agreement," "Agreement," the prefix
"herein," "hereof," or words of similar import, and each reference in the Loan
Documents to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as amended hereby. (b) Except as modified herein, all of the
representations, warranties, terms, covenants and conditions of the Loan
Agreement, the Loan Documents and all other agreements executed in connection
therewith shall remain as written originally and in full force and effect in
accordance with their respective terms, and nothing herein shall affect,
modify, limit or impair any of the rights and powers which the Bank may have
thereunder. The amendment set forth herein shall be limited precisely as
provided for herein, and shall not be deemed to be a waiver of, amendment of,
consent to or modification of any of the Bank's rights under or of any other
term or provisions of the Loan Agreement, any Loan Document, or other agreement
executed in connection therewith, or of any term or provision of any other
instrument referred to therein or herein or of any transaction or future action
on the part of the Borrowers which would require the consent of the Bank,
including, without limitation, waivers of Events of Default which may exist
after giving effect hereto. Each of the Borrowers ratifies and confirms each
term, provision, condition and covenant set forth in the Loan Agreement and the
Loan Documents and acknowledges that the agreement set forth therein continue
to be legal, valid and binding agreements, and enforceable in accordance with
their respective terms.
9. Authority. Each of the Borrowers hereby represents and
warrants to the Bank that (a) such Borrower has legal power and authority to
execute and deliver the within Amendment; (b) the officer executing the within
Amendment on behalf of such Borrower has been duly authorized to execute and
deliver the same and bind such Borrower with respect to the provisions provided
for herein; (c) the execution and delivery hereof by such Borrower and the
performance and observance by such Borrower of the provisions hereof do not
violate or conflict with the articles of incorporation, regulations or by-laws
of such Borrower or any law applicable to such Borrower or result in the breach
of any provision of or constitute a default under any agreement, instrument or
document binding upon or enforceable against such Borrower; and (d) this
Amendment constitutes a valid and legally binding obligation upon such Borrower
in every respect.
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10. Counterparts. This Amendment may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be an
original, but all of which together shall constitute one and the same document.
Separate counterparts may be executed with the same effect as if all parties
had executed the same counterparts.
11. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of Ohio.
IN WITNESS WHEREOF, the Borrowers, the Guarantors and the Bank
have hereunto set their hands as of the date first set forth above.
THE BORROWERS:
XXXXXXX STEEL COMPANY
By Xxxxxxx X. Xxxxxx
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Its Vice President, Chief Financial
Officer, Treasurer/Secretary
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EBALLOY GLASS PRODUCTS COMPANY
By Xxxxxxx X. Xxxxxx
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Its Treasurer/Secretary
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ERIE BRONZE & ALUMINUM COMPANY
By Xxxxxxx X. Xxxxxx
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Its Treasurer/Secretary
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XXXXXXX INTERNATIONAL, INC.
By Xxxxxxx X. Xxxxxx
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Its Treasurer/Secretary
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THE GUARANTORS:
CENTRUM INDUSTRIES, INC.
By Xxxxxx X. Xxxxx
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Its President
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XXXXXXX SERVICES, INC.
By Xxxxxxx X. Xxxxxx
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Its Treasurer/Secretary
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THE BANK:
THE HUNTINGTON NATIONAL BANK
By: Xxxx X. Xxxxxxxx
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Its: Assistant Vice President
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SCHEDULE 6.11
Compensation of Officers
Name Base Compensation Bonus Fringes (3) Comments
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Xxxxxxx X. Xxxxxxx $ 140,000(1) Varies(2) $ 3,500 Executive Medical Reimbursement Plan.
2,600 Premium for $100,000 Whole-Life insurance
contract.
1,600(4) Country Club and Dinner Club dues and
assessments.
As incurred Personal tax return preparation.
2,000 Non-Qualified Deferred Compensation Plan
contribution.
(5) Stock Option Plan.
Xxxxxxx X. Xxxxxx $ 108,000(1) Varies(2) $ 3,500 Executive Medical Reimbursement Plan.
1,000 Premium for $100,000 Whole-Life insurance
contract.
1,400(4) Country Club and Dinner Club dues and
assessments.
As incurred Personal tax return preparation.
(5) Stock Option Plan.
(1) Adjusted annually at the lesser of the CPI or 4%. Refer to Section 3
of respective employment agreements.
(2) Bonus payable based upon a formula of 3.125% of profit (Profit defined
as pretax profit before intercompany administrative charges and bonus
payments) split between a maximum of 3 people. See Performance Award
Plan.
(3) Fringe benefits listed are those benefits in excess of the normal
employee benefit plans provided to the salaried employees. Refer to
Section 5 of employment agreements.
(4) Dues amount only. Total payments may vary based upon assessments,
etc. Refer to Section 5 of respective employment agreements.
(5) Refer to Centrum Industries' Stock Option Agreement, Stock Option
Agreement between Centrum Industries and Principal Shareholder, and
Performance Award Plan.
