FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment"), dated as of November 12, 1997, by and among
X.X. XXXXXX COMPANY, a Delaware corporation ("Xxxxxx" or the
"Borrower"), and Mellon Bank, N.A., PNC BANK, NATIONAL
ASSOCIATION and CORESTATES BANK, N.A. (separately, a "Bank", and
collectively, the "Banks") and MELLON BANK, N.A., as agent for
the Banks (in such capacity, the "Agent").
RECITALS:
WHEREAS, the Borrower, the Banks and the Agent entered into that
certain Amended and Restated Loan Agreement, dated as of
November 1, 1995 (as amended by that certain First Amendment to
Amended and Restated Loan Agreement, dated as of January 1,
1996, that certain Second Amendment to Amended and Restated Loan
Agreement, dated as of December 31, 1996, and that certain Third
Amendment to Amended and Restated Loan Agreement, dated as of
April 9, 1997, the "Restated Agreement");
WHEREAS, the Borrower and the Banks desire to further amend the
Restated Agreement; and
WHEREAS, capitalized terms not otherwise defined herein shall
have the meanings assigned thereto in the Restated Agreement.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and
intending to be legally bound, hereby agree as follows:
Section 1. Amendment to Section 1.01 of Restated Agreement.
Section 1.01 of the Restated Agreement is hereby amended by
adding after the definition of "CD Rate Portion" a definition of
"Change of Control", such definition to read in its entirety as
follows:
"'Change of Control' shall mean any person or group of persons
(as used in Sections 13 and 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder) shall have become the beneficial owner
(as defined in Rules 13d-3 and 13d-5 promulgated by the
Securities and Exchange Commission (the "SEC") under the
Exchange Act) of 20% or more of the combined voting power of all
the outstanding voting securities of the Borrower and, at any
time following any merger, consolidation, acquisition, sale of
assets or other corporate restructuring of Borrower, during any
period of six consecutive calendar months, individualsWho were
directors of the Borrower on the first day of such
period, together with individuals elected as directors by not
less than two-thirds of the individuals who were directors of
the Borrower on the first day of such period, shall cease to
constitute a majority of the members of the board of directors
of the Borrower."
Section 2. Amendment to Section 3.05 of Restated Agreement.
Section 3.05 of the Restated Agreement is hereby amended to read
in its entirety as follows:
"Section 3.05. Material Adverse Change. Since December 31, 1994,
there has been no material adverse change in the business,
assets or financial condition of the total enterprise
represented by Xxxxxx and its Subsidiaries on a consolidated
basis."
Section 3. Amendment to Section 5.02(b) of the Restated
Agreement. Section 5.02(b) of the Restated Agreement is hereby
amended by adding thereto a new subsection (8) to read as
follows:
" (8) Indebtedness assumed by Xxxxxx not exceeding $2,000,000
principal amount evidenced by, or in connection with, industrial
development revenue bonds relatIng to facilities of Precise
Fabricating Corporation acquired by Xxxxxx."
Section 4. Amendment to Section 5.02(g) of the Restated
Agreement. Section 5.02(g) of the Restated Agreement is hereby
amended by adding thereto a new subsection (11) to read as
follows:
" (11) an Investment not exceeding $6,000,000 (minus the
principal amount of any Indebtedness assumed) in certain assets
acquired from Precise Fabricating Corporation and an Investment
not exceeding $1,000,000 in certain assets acquired from
Xxxxxx-Xxxx Lumber Company."
Section 5. Amendment to Section 5.02(h) of the Restated
Agreement. Section 5.02(h) of the Restated Agreement is hereby
amended to read in its entirety as follows:
"(h) Restrictions on Distributions and Retirements, Purchases
and Redemptions. Directly or indirectly, or through any of its
Subsidiaries, declare, pay, make or incur any liability to make
any Distribution, except for (i) Distributions made by any
Subsidiary to Borrower, and (ii) (A) Distributions made in the
form of Dividends in respect of common stock of Xxxxxx at any
time on or after January 1, 1997, and (B) purchases,
redemptions, acquisitions or other retirements, directly or
indirectly, of any sha2~es of any class of capital stock of
Xxxxxx at any time on or
after January 1, 1997; provided, that the aggregate cumulative
amount of all such transactions permitted under clause (A) and
(B) above and of payments and redemptions contemplated by
Section 5.02(j) hereof, other than payments or redemptions of
Indebtedness at stated redemption dates or stated maturity
dates, shall not exceed the sum of $3,410,000 plus 25% of any
Consolidated Net Income for the period from January 1, 1997, to
and including the end of the fiscal quarter most recently ended
at the time in question."
Section 6. Amendment to Section 5.02 of Restated Agreement.
Section 5.U2(j) of the Restated Agreement is hereby amended to
read in its entirety as follows:
"(j) Debt Retirement, Purchases and Redemptions. (i)
Voluntarily purchase, prepay, redeem or otherwise
retire any preferred or preference stock, subordinated
debentures, sinking fund debentures, promissory notes
or other securities issued by Borrower or any
subsidiary, or agree to the rescheduling to shorten
scheduled maturities or principal payments of or to
increase the rate of interest payable on outstanding
indebtedness under any agreement or instrument
evidencing an obligation for borrowed money of Borrower
or any Subsidiary, or permit any of its subsidiaries to
do so, other than the Indebtedness referred to in
paragraph (8) of Section 5.02(b) hereof or (ii)
purchase, redeem, acquire or otherwise retire, directly
or indirectly, any shares of common stock of Xxxxxx, or
permit any of its Subsidiaries to do so.
Notwithstanding clauses (i) and (ii) above, Xxxxxx may
purchase, redeem, acquire or otherwise retire shares of
common stock of Xxxxxx, preferred or preference stock
of Xxxxxx, subordinated indentures of Xxxxxx, sinking
fund debentures of Xxxxxx, promissory notes of Xxxxxx
or other securities of Xxxxxx or stock purchase rights
of Xxxxxx if, and only if, the aggregate amount of all
such payments or redemptions, other than payments or
redemptions at stated redemption dates or stated
maturity dates, does not exceed the limits set forth in
Section 5.02(h).
Section 7. Amendment to Section 5.02 of Restated Agreement.
Section 5.02 of the Restated Agreement is hereby amended by
adding a new subsection (m) thereto, such new subsection (m) to
read in its entirety as follows:
"(m) Change of Control. Enter into any merger, consolidation,
reorganization, corporation restructuring or other transaction,
or take any other action, that shall cause or result in, or for
any reason suffer, a Change of Control."
Section 8. Amendment to Section 6.01(d) of the Restated
Agreement. Section 6.01(d) of the Restated Agreement is hereby
amended to read in its entirety as follows:
11(d) A Default shall occur under Section 5.01(h),
5.01(i), 5.01(i), 5.02(a), 5.02(e), 5.02(h), 5.02(i),
5.02(j), 5.02(k) or 5.02(m) hereof or an Event of
Default shall occur under the Security Agreement, the
Pledge Agreement, or the Guaranty and Suretyship
Agreements; or"
Section 9. Representations and Warranties of Borrower. The
Borrower hereby represents and warrants to each Bank and the
Agent that this Amendment has been duly and validly executed and
delivered by Borrower and constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance
with the terms hereof, except as the enforceability may be
limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors'
rights or by genera'l principles of equity limiting the
availability of equitable remedies.
Section 10. Miscellaneous.
(a) This Amendment shall become effective as of the date hereof,
upon execution and delivery hereof by the Banks or the Required
Banks as permitted or required by Section 8.01 of the Restated
Agreement, the Borrower and the Agent. The execution below by
the Banks or Required Banks (as the case may be) shall
constitute a direction to the Agent to execute this Amendment.
(b) The Restated Agreement, as amended by this Amendment, is in
all respects ratified, approved and confirmed and shall, as so
amended, remain in full force and effect. From and after the
date hereof, all references to the "Agreement" in the Restated
Agreement and in the other Loan Documents shall be deemed to be
references to the Restated Agreement as amended by this
Amendment.
(c) This Amendment, and the rights and obligations of the
parties hereto, shall be governed by and construed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania,
exclusive of choice and conflict of law principles.
(d) This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed an original,
but all such counterparts shall constitute but one and the same
instrument.
