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Exhibit 10.35
AMENDMENT dated as of December 4, 1998, to the
Amended and Restated Credit Agreement, dated as of July 18,
1997, as amended and restated as of September 26, 1997, as
previously amended (the "CREDIT AGREEMENT"), among ARGO-TECH
CORPORATION, AT HOLDINGS CORPORATION, the Lenders party
thereto and THE CHASE MANHATTAN BANK, as Administrative Agent.
WHEREAS, the Borrower (such term and each other capitalized term used
but not defined herein having the meanings assigned to such terms in the Credit
Agreement as amended hereby), has requested that the Lenders approve amendments
to certain provisions of the Credit Agreement; and
WHEREAS, the undersigned Lenders are willing, on the terms and subject
to the conditions set forth herein, to approve such amendments;
NOW, THEREFORE, in consideration of these premises, the Borrower,
Holdings and the undersigned Lenders hereby agree as follows:
SECTION 1. AMENDMENTS. Effective as of the Amendment Effective Date (as
defined in Section 3 hereof), the Credit Agreement is hereby amended as follows:
(a) The following definitions are added to Section 1.01 of the Credit
Agreement in their appropriate alphabetical positions:
"ARGO-TECH NOTES" means the senior unsecured subordinated
notes issued by the Borrower, at a discount, for cash consideration of
up to $50,000,000, the proceeds of which are used to pay dividends to
Holdings and which dividends are used by Holdings to purchase Common
Stock from AT Holdings, LLC.
"ARGO-TECH NOTES DOCUMENTS" means the indenture under which
the Argo-Tech Notes are issued and all other agreements and documents
evidencing, guaranteeing or providing for the terms and conditions of
the Argo-Tech Notes.
"EMPLOYEE STOCK COMPENSATION PLANS" means the SERP, the SAR
Plan or any other plan for the benefit of officers, directors or
employees of the Borrower, Holdings or any of their Subsidiaries under
which Common Stock or options to acquire Common Stock are granted to
such individuals.
"HOLDINGS PREFERRED STOCK" means up to $30,000,000 of
cumulative exchangeable redeemable preferred stock issued by Holdings
with warrants to purchase common stock of Holdings (on terms and
conditions substantially as set forth on Annex 1 hereto), the proceeds
of which are used to purchase Common Stock from AT Holdings, LLC.
(b) The definition of "Prepayment Event" in Section 1.01 of the Credit
Agreement is hereby amended by inserting at the end of clause (c) thereof the
following: "and
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the issuance of any class of common stock by Holdings PROVIDED that the proceeds
of such issuance are used to redeem Holdings Preferred Stock."
(c) Section 5.11 of the Credit Agreement is hereby amended by replacing
the reference to (a) in clause (c) thereof with (b)".
(d) Section 6.01(a) of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of clause (ix) thereof, (ii) replacing the "." at
the end of clause (x) thereof with "; and" and (iii) inserting immediately
following clause (x) thereof the following: "(xi) in the case of the Borrower,
the Argo-Tech Notes; PROVIDED that the representations, warranties, covenants,
events of default and other terms of the Argo-Tech Notes shall be no more
restrictive than the representations, warranties, covenants, events of default
and other terms contained in the Senior Subordinated Notes".
(e) Section 6.01(c) of the Credit Agreement is hereby amended by
inserting at the end thereof the following: "and any agreement entered into
between the Borrower and AT Holdings, LLC pursuant to which the Borrower agrees
to purchase Common Stock from AT Holdings, LLC with the proceeds derived from
the issuance of the Argo-Tech Notes and the Holdings Preferred Stock. Holdings
may, however, issue the Holdings Preferred Stock".
(f) Section 6.02(b) of the Credit Agreement is hereby amended by
replacing the reference to "Pledge Agreement" contained therein with "Loan
Documents".
(g) Section 6.04 is hereby amended by (A) deleting the figure
"$2,500,000" and substituting therefor "$3,500,000" in clause (i) thereof and
(B) (i) deleting the "and" at the end of clause (1) thereof, (ii) replacing the
"." at the end of clause (m) thereof with "; and" and inserting after clause (m)
thereof the following: "(n) Holdings may purchase up to 650,000 shares of Common
Stock from AT Holdings, LLC with the proceeds of the Argo-Tech Notes and
Holdings Preferred Stock."
(h) Section 6.08(a) (iii) of the Credit Agreement is hereby amended by
replacing all references to "(a)" contained therein with "(b)".
(i) Section 6.08(a) of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of clause (iii) thereof, (ii) replacing the "." at
the end clause (iv) thereof with "; and (iii) inserting after clause (iv)
thereof the following: "(v) The Borrower may pay dividends to Holdings from the
proceeds of the Argo-Tech Notes, and the proceeds of such dividends shall be
used to make the Restricted Payments contemplated by and permitted under Section
6.04(n); and (vi) Holdings may declare and pay dividends with respect to the
Holdings Preferred Stock solely in additional shares of such stock.
(j) Section 6.09 is hereby amended by (i) replacing the word "and" at
the end of clause (e) with "," and inserting after clause (f) thereof the
following: "Holding's purchase of up to 650,000 shares of Common Stock from AT
Holdings, LLC with the proceeds of the Argo- Tech Notes and Holdings Preferred
Stock.
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(k) Section 6.10 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (iv) thereof, (ii) replacing the
"." at the end of clause (v) thereof with "," and (iii) inserting after clause
(v) thereof the following: "(vi) the foregoing shall not apply to restrictions
and conditions imposed by the Argo-Tech Notes Documents PROVIDED that the
restrictions and conditions imposed by the Argo-Tech Notes Documents shall be no
more restrictive than the restrictions and conditions contained in the Senior
Subordinated Notes and (vii) the foregoing shall not apply to restrictions on
dividends under the Holdings Preferred Stock".
(1) Section 6.11(b) of the Credit Agreement is hereby amended by
inserting after clause (b) thereof the following: "PROVIDED that the
Stockholders' Agreement may be amended so long as (i) such amendment does not
have a material adverse effect on the interests of the Lenders under this
Agreement and (ii) the Administrative Agent and its counsel have had an
opportunity to review such amendment".
(m) Section 6.11(a) of the Credit Agreement is amended by inserting
after the proviso the following: "and the organizational documents of Holdings
may be amended so long as (i) such amendment does not have a material adverse
effect on the interests of the lenders under this Agreement and (ii) the
Administrative Agent and its counsel have had an opportunity to review such
amendment".
(n) Section 6.11(f) of the Credit Agreement is hereby amended by
inserting "and the Argo-Tech Notes Documents" immediately after the reference to
"Senior Subordinated Notes Documents" contained therein.
(o) Schedule 3.13 of the Credit Agreement is hereby amended by
replacing it with Schedule 3.13 hereto.
(p) Annex 1 is hereby added as Annex 1 to the Credit Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and
Holdings represents and warrants to each of the Lenders that, after giving
effect to the amendments contemplated hereby, (i) the representations and
warranties of the Borrower and Holdings set forth in the Loan Documents are true
and correct on and as of the date of this Amendment and (ii) no Default has
occurred and is continuing.
SECTION 3. EFFECTIVENESS. This Amendment shall become effective as of
the date (the "AMENDMENT EFFECTIVE DATE") when all of the following conditions
shall have been met:
(i) the Administrative Agent (or its counsel) shall have received
copies hereof that, when taken together, bear the signatures
of the Borrower, Holdings and the Required Lenders; and
(ii) the Argo-Tech Notes or the Holdings Preferred Stock shall have
been issued.
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SECTION 4. AMENDMENT FEE. The Borrower shall pay to the Administrative
Agent a fee for the account of each Lender that executes and delivers a copy of
this Amendment to the Administrative Agent (or its counsel) on or prior to
December 4, 1998, in an amount equal to .125% of the sum of such Lender's
Revolving Commitment (whether used or unused) and outstanding Term Loans, in
each case as of the Amendment Effective Date. Such fee shall be payable on the
date on which the issuance of the Argo-Tech Notes and the Holdings Preferred
Stock has been completed.
SECTION 5. APPLICABLE LAW. This Amendment shall be construed in
accordance with and governed by the law of the State of New York.
SECTION 6. NO OTHER AMENDMENTS. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of any party under, the
Credit Agreement, nor alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement specifically
referred to herein.
SECTION 7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 8. HEADINGS. Section headings used herein are for convenience
of reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
SECTION 9. EXPENSES. The Borrower shall reimburse the Administrative
Agent for its reasonable out-of-pocket expenses incurred in connection with this
Amendment, including the reasonable fees and expenses of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the Borrower, Holdings and the undersigned Lenders
have caused this Amendment to be duly executed by their duly authorized
officers, all as of the date first above written.
AT HOLDINGS CORPORATION
By /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
ARGO-TECH CORPORATION
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BANK ONE, NA
By /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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COMERICA BANK
By /s/ Xxxxxxx X. Judge
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Name: Xxxxxxx X. Judge
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ W. Xxxxx Xxxxxx
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Name: W. Xxxxx Xxxxxx
Title: First Vice President
By /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
CREDIT LYONNAIS CHICAGO
BRANCH
By /s/ Xxxx Xxx Xxxxx
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Name: Xxxx Xxx Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxxx XxXxxxxxx
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Name: Xxxxxxx XxXxxxxxx
Title: Vice President
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XXXXXX FINANCIAL, INC.
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
KEY BANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
NATIONAL CITY BANK
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By
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Name:
Title:
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