FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT (this "AMENDMENT"), to the Credit Agreement dated
as of October 23, 1996, among CENTRAL PRODUCTS COMPANY, a Delaware
corporation ("CENTRAL"), SPINNAKER COATING, INC., a Delaware corporation
formerly known as Xxxxx-Bridge Industries, Inc. ("COATING"), ENTOLETER, INC.,
a Delaware corporation ("ENTOLETER" and, together with Central and Coating,
the "EXISTING BORROWERS"), SPINNAKER INDUSTRIES, INC., a Delaware corporation
(the "GUARANTOR"), each of the financial institutions from time to time
parties thereto, as lenders (the "LENDERS"), BT COMMERCIAL CORPORATION, as
agent (in such capacity, the "AGENT") for the Lenders, TRANSAMERICA BUSINESS
CREDIT CORPORATION, as collateral agent (in such capacity, the "COLLATERAL
AGENT"), and BANKERS TRUST COMPANY, as issuing bank (the "ISSUING BANK"), is
made as of March 17, 1998 among the Existing Borrowers, Spinnaker
Coating-Maine, Inc., a Delaware corporation ("SCM" and, together with the
Existing Borrowers, the "BORROWERS"), the Guarantor, the Agent, the
Collateral Agent, the Issuing Bank and the Lenders.
W I T N E S S E T H :
WHEREAS, the Existing Borrowers, the Guarantor, the Lenders, the Agent,
the Collateral Agent and the Issuing Bank are parties to the Credit
Agreement, dated as of October 23, 1996 (as amended by the First Amendment
dated as of December 31, 1996, the Second Amendment dated as of March 31,
1997, the Third Amendment dated as of September 30, 1997 and the Fourth
Amendment dated as of December 31, 1997 and as the same may be further
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement unless otherwise defined herein);
WHEREAS, Section 7.2(o) of the Credit Agreement prohibits the Existing
Borrowers and the Guarantor from creating or acquiring any direct or indirect
Subsidiary except as expressly provided therein;
WHEREAS, the Existing Borrowers and the Guarantor desire that SCM become
a wholly-owned Subsidiary of Coating and a borrower under the Credit
Agreement;
WHEREAS, SCM intends to acquire from S.D. Xxxxxx Company ("SDW") its
Pressure Sensitive Business (the "ACQUIRED BUSINESS") for a purchase price of
approximately $51,770,000 (the "ACQUISITION") pursuant to an Asset Purchase
Agreement dated as of November 18, 1997, as amended by the First Amendment
dated as of March 17, 1998 (the "PURCHASE AGREEMENT") between SDW and the
Guarantor, which purchase price shall consist of $44,770,000 in
cash and a subordinated note in the principal amount of $7,000,000 made by
the Guarantor in favor of SDW (the "SDW SUBORDINATED NOTE");
WHEREAS, in connection with the Purchase Agreement, SCM is entering into
a subordinated guaranty in favor of SDW (the "SDW SUBORDINATED GUARANTY"),
pursuant to which SCM has agreed to guarantee the obligations of the
Guarantor under the SDW Subordinated Note on the terms set forth in the
Subordinated Guaranty;
WHEREAS, the Existing Borrowers and the Guarantor have requested that
the Lenders agree to amend the Credit Agreement, among other things, to
enable SCM to become a borrower thereunder and a wholly owned Subsidiary of
Coating, increase the Commitment of each Lender and extend the Expiration
Date; and
WHEREAS, the Lenders are agreeable to such amendments, but only on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT. Effective as of the date
hereof, but subject to the satisfaction of the conditions precedent set forth
in Section 2, the Credit Agreement is hereby amended as follows:
(a) The Preamble to the Credit Agreement is amended by deleting
"('ENTOLETER' and, together with Central and Xxxxx, the 'BORROWERS')" and
substituting the following therefor:
"('ENTOLETER'), Spinnaker Coating-Maine, Inc., a Delaware corporation
with its chief executive office and principal place of business at
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx 00000 ("SCM" and, together with
Central, Xxxxx and Entoleter, the 'BORROWERS')."
(b) The definition of "Acquisition Basket" in Section 1.1 of the Credit
Agreement is amended and restated as follows:
"'ACQUISITION BASKET' means the sum of (i) $15,000,000 (the
"Acquisition Base Amount"), (ii) if positive, Excess Cash Flow and
(iii) the Equity Proceeds Amount as of the date of determination;
PROVIDED that reductions for Capital Expenditures and Investments
shall be without duplication and the Acquisition Basket shall not be
reduced by any Investments (x) to the extent paid for
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with the issuance of capital stock of the Guarantor or (y) made in
connection with the SDW Acquisition."
(c) The definition of "Borrowing Base" in Section 1.1 of the Credit
Agreement is amended by inserting "the SCM Borrowing Base," immediately
after the phrase "the sum of."
(d) The definition of "Credit Documents" in Section 1.1 of the Credit
Agreement is amended by inserting "the SDW Subordinated Note, the SDW
Subordinated Guaranty," immediately after "Intercompany Subordinated Notes,".
(e) Subsection (h) of the definition of "Eligible Accounts Receivable"
in Section 1.1 of the Credit Agreement is amended by (i) deleting "or"
immediately before "(iii)" and substituting therefor "," and (ii) adding at
the end of clause (iii) thereof the following: "or (iv) the Account is
covered by a credit insurance policy in form and substance, and issued by an
insurer, satisfactory to the Agent."
(f) The definition of "Equity Proceeds Amount" in Section 1.1 is amended
by (i) deleting "and" at the end of clause (c) thereof and substituting
therefore ";" and (ii) inserting the following immediately before the period
at the end of such definition:
"and (d) reduced at the time any prepayment of the SDW
Subordinated Note is made in accordance with Section 2.9(d) by
the amount of such prepayment."
(g) The definition of "Letter of Credit Obligations" in Section 1.1 of
the Credit Agreement is amended by inserting "the SCM Letter of Credit
Obligations," immediately after the phrase "the total of."
(h) The definition of "Line of Credit" in Section 1.1 of the Credit
Agreement is amended by deleting "$40,000,000" and substituting therefor
"$60,000,000." Section 1.1 of the Credit Agreement is amended by adding the
following definitions in their appropriate alphabetical order:
"'SCM' is defined in the Preamble to this Credit Agreement."
"'SCM ACCOUNTS BORROWING BASE' means, on any day, an amount up to
85% of the
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outstanding Eligible Accounts Receivable of SCM on such day."
"'SCM BORROWING BASE' means, on any day, an amount equal to the
sum of (a) the SCM Accounts Borrowing Base on such day and (b) the SCM
Inventory Borrowing Base on such day."
"'SCM INVENTORY BORROWING BASE' means, on any day, an amount up
to 65% of the Eligible Inventory of SCM on such day."
"'SCM LETTER OF CREDIT OBLIGATIONS' means, the sum of the
aggregate undrawn amount of all Letters of Credit outstanding for
SCM's account, plus the aggregate amount of all drawings under Letters
of Credit issued for SCM's account for which the Borrowers have not
reimbursed the Issuing Bank, plus the aggregate amount of all payments
made by the Lenders to the Issuing Bank for participations in Letters
of Credit issued for SCM's account for which the Borrowers have not
reimbursed the Lenders."
"'SCM LINE OF CREDIT' means the aggregate revolving line of
credit extended by the Lenders to SCM for Revolving Loans and Letters
of Credit pursuant to and in accordance with the terms of this Credit
Agreement, in the amount of $15,000,000, as such revolving line of
credit may be reduced from time to time in accordance with this Credit
Agreement."
"'SDW ACQUISITION' means the acquisition by SCM of the Pressure
Sensitive Business of S.D. Xxxxxx Company."
"'SDW SUBORDINATED GUARANTY' means the subordinated guaranty
dated as of March 17, 1998 made by the Borrowers in favor of S.D.
Xxxxxx Company, as amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof."
"'SDW SUBORDINATED NOTE' means the subordinated note dated
March 17, 1998 made by the Guarantor in favor of S.D. Xxxxxx Company,
as amended, supplemented or
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otherwise modified from time to time in
accordance with the terms hereof."
(j) Section 2.1(a) is amended by (i) deleting the period at the end of
subsection (iii) and substituting therefor "; and" and (ii) inserting the
following new subsection (iv):
"(iv) TO SCM: an aggregate amount equal to the lesser of (x) the
SCM Line of Credit and (y) the SCM Borrowing Base, minus, in each case,
the then outstanding SCM Letter of Credit Obligations and the Pending
Borrowings of SCM provided that no Revolving Loan or Letter of Credit
may be incurred if after giving effect thereto an amount equal to fifty
percent (50%) of the sum of the Revolving Loans extended by the Lenders
to SCM and SCM Letter of Credit Obligations exceeds the SCM Accounts
Borrowing Base."
(k) Section 3.1 is amended by:
(i) deleting "$5,000,000" in subsection (b) and substituting
therefor "$7,000,000";
(ii) relettering subsections (d), (e) and (f) as (e), (f) and (g),
respectively; and
(iii) inserting a new subsection (d) as follows:
"(d) The face amount of such Letter of Credit requested by SCM,
(i) when added to the SCM Letter of Credit Obligations then outstanding,
would cause the SCM Letter of Credit Obligations to exceed $4,000,000 or
(ii) when added to the aggregate amount of Revolving Loans to SCM and
all SCM Letter of Credit Obligations then outstanding would cause the
sum of the Revolving Loans to SCM and the SCM Letter of Credit
Obligations to exceed the lesser of (x) the SCM Line of Credit and (y)
the SCM Borrowing Base then in effect; or."
(l) Section 2.9(d) is amended by adding the following proviso immediately
before the period at the end thereof:
"; PROVIDED, that if (i) a Credit Party receives Net Cash Proceeds
from the issuance of equity securities, (ii) after giving effect
thereto, Unused Availability shall be equal to or greater than
$15,000,000 and (iii) no Event of Default has occurred and is
continuing, then such Credit Party shall not be required to apply such
Net Cash Proceeds to repay the Revolving Loans to the extent that Unused
Availability exceeds $15,000,000 (it being understood that such
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Credit Party may apply such excess to prepay the SDW Subordinated Note)"
(m) Section 7.2(b) is amended by deleting clause (viii) thereof and
substituting therefor the following:
"(viii) (A) the Senior Notes and (B) the SDW Subordinated Note;"
(n) Section 7.2(f) of the Credit Agreement is amended by deleting clause
(ix) thereof and substituting therefor the following:
"(ix) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, the SDW Acquisition;
PROVIDED, that the purchase price therefor shall not exceed
$51,770,000 (excluding reasonable costs and expenses incurred in
connection therewith), subject to any purchase price adjustments set
forth in the Asset Purchase Agreement dated as of November 18, 1997
between S.D. Xxxxxx Company and the Guarantor, as amended by the First
Amendment dated as of March 17, 1998; and"
(o) Section 7.2(l) is amended by (i) inserting ", the SDW Subordinated
Note, the SDW Subordinated Guaranty" immediately after the phrase "the
Intercompany Subordinated Notes" in each place it appears and (ii) inserting
immediately at the end of such Section a new sentence as follows:
"The Credit Parties will not, nor will they permit any of their
Restricted Subsidiaries, to make any cash payments on account of the SDW
Subordinated Note at any time, except (i) prepayments of the SDW
Subordinated Note to the extent expressly permitted by Section 2.9(d),
(ii) so long as, both before and after giving effect thereto, no Event
of Default has occurred and is continuing and Unused Availability is at
least $15,000,000, prepayments of principal of the SDW Subordinated Note
in accordance with the terms thereof as in effect on March 17, 1998 and
(iii) so long as, both before and after giving effect thereto, no Event
of Default has occurred and is continuing and the Credit Parties would
be in compliance with Section 7.2(u) on a pro forma basis, regularly
scheduled payments of interest on the SDW Subordinated Note in
accordance with the terms thereof as in effect on March 17, 1998."
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(p) Section 7.2(o) is amended by deleting "create or acquire a
Restricted Subsidiary" and substituting therefor "create SCM and create or
acquire a Restricted Subsidiary."
(q) Section 7.2(t) is amended and restated as follows:
"(t) MINIMUM CONSOLIDATED CURRENT RATIO. The Credit Parties will
not permit the Consolidated Current Ratio, at any time during each
period set forth below, to be less than the ratio set forth below
opposite such period:
PERIOD RATIO
------ -----
Closing Date through 1.20:1.00
December 31, 1997
January 1, 1998 through 0.90:1.00
March 31, 1999
April 1, 1999 and thereafter 1.00:1.00"
(r) Section 7.2(u) is amended and restated as follows:
"(u) MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO. The Credit Parties will
not permit the Consolidated Interest Coverage Ratio, for each fiscal period
set forth below, to be less than the ratio set forth below opposite such
period:
PERIOD RATIO
------ -----
April 1, 1997 through 1.25:1.00
March 31, 1998
July 1, 1997 through 1.30:1.00
June 30, 1998
October 1, 1997 through 1.35:1.00
September 30, 1998
January 1, 1998 through 1.40:1.00
December 31, 1998
April 1, 1998 through 1.40:1.00
March 31, 1999
July 1, 1998 through 1.50:1.00
June 30, 1999
October 1, 1998 through 1.60:1.00
September 30, 1999
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January 1, 1999 through 1.65:1.00
December 31, 1999
April 1, 1999 through 1.65:1.00
March 31, 2000
July 1, 1999 through 1.75:1.00
June 30, 2000
October 1, 1999 through 1.85:1.00
September 30, 2000
January 1, 2000 through 1.90:1.00
December 31, 2000
April 1, 2000 through 1.90:1.00
March 31, 2001
July 1, 2000 through 2.00:1.00
June 30, 2001
October 1, 2000 through 2.10:1.00
September 30, 2001
January 1, 2001 through 2.15:1.00"
December 31, 2001
(s) Section 7.2(v) is amended and restated as follows:
"(v) CONTINGENT OBLIGATIONS. The Credit Parties shall not, and
shall not permit any of their Restricted Subsidiaries to, directly or
indirectly incur, assume, or suffer to exist any Contingent Obligation,
excluding (i) indemnities given in connection with the sale of Inventory
or other asset dispositions permitted hereunder, (ii) Contingent
Obligations for Indebtedness permitted to be incurred under Section
7.2(b) (excluding Section 7.2(b)(viii)(B)), (iii) the SDW Subordinated
Guaranty and (iv) guaranties, substantially in the form of the SDW
Subordinated Guaranty, made by Restricted Subsidiaries pursuant to
Section 6.4 of the SDW Subordinated Note as in effect on March 17, 1998."
(t) Clause (j) of Section 8.1 is amended by inserting "or in the SDW
Subordinated Note or in the SDW Subordinated Guaranty" immediately after "any
Intercompany Subordinated Note."
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(u) Section 11.11(a)(i)(F) is amended by inserting "SCM Accounts
Borrowing Base, SCM Inventory Borrowing Base," immediately after the phrase
"the definitions of."
(v) Schedule 1 to the Credit Agreement is amended by (i) deleting
"$20,000,000" from each place it appears and substituting therefor
"$30,000,000" and (ii) deleting "$40,000,000" and substituting therefor
"$60,000,000."
(w) Schedule 6.1(a) to the Credit Agreement is amended and restated in
the form of Annex I hereto.
(x) Schedule 6.1(k) to the Credit Agreement is amended and restated in
the form of Annex II hereto.
(y) Schedule 6.1(l)(i) to the Credit Agreement is amended and restated in
the form of Annex III hereto.
(z) Schedule 6.1(l)(ii) to the Credit Agreement is amended and restated
in the form of Annex IV hereto.
(aa) Schedule 6.1(p) to the Credit Agreement is amended and restated in
the form of Annex V hereto.
(ab) Schedule 6.1(r) to the Credit Agreement is amended and restated in
the form of Annex VI hereto.
(ac) Schedule 6.1(v) to the Credit Agreement is amended and restated in
the form of Annex VII hereto.
(ad) Schedule 6.1(w) to the Credit Agreement is amended and restated in
the form of Annex VIII hereto.
(ae) Schedule 6.1(x) to the Credit Agreement is amended and restated in
the form of Annex IX hereto.
(af) Schedule 7.2(P) to the Credit Agreement is amended and restated in
the form of Annex X hereto.
(ag) Exhibit M to the Credit Agreement is amended and restated in the form
of Annex XI hereto.
(ah) Exhibits B, C, D, E, F and N of the Credit Agreement are each amended
by including therein a reference to Spinnaker Coating-Maine, Inc., as the
context may require, and each reference to "Borrowers" in such Exhibits shall
include Spinnaker Coating-Maine, Inc.
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SECTION 2. CONDITIONS PRECEDENT This Amendment shall become effective
upon the Agent's receipt of this Amendment, duly executed by each Borrower,
the Guarantor (collectively, the "CREDIT PARTIES"), the Issuing Bank, the
Agent, the Collateral Agent and the Lenders, and upon the Lenders' receipt of
(x) the amounts payable under Section 7 hereof and (y) the amounts set forth
in the Fee Letter dated November 18, 1997, as amended, from the Lenders to
the Existing Borrowers and the Guarantor. Section 1 hereof shall become
effective when, and only when, the Agent shall have additionally received all
of the following on or before March 31, 1998, each of which shall be in form
and substance satisfactory to the Agent and the Collateral Agent
(collectively, the "Agents"):
(a) Certified copies of (i) the resolutions of the Board of Directors of
each Credit Party approving this Amendment, the documents delivered in
connection herewith and the matters contemplated hereby and thereby, (ii) all
documents evidencing other necessary corporate actions and governmental
approvals, if any, with respect to this Amendment, the Purchase Agreement and
the transactions contemplated hereby and thereby, (iii) executed copies of
the SDW Subordinated Note and the SDW Subordinated Guaranty and (iv) executed
copies of the Purchase Agreement (including the amendment thereto) and all
material documents and agreements executed in connection therewith
(including, without limitation, the Site Separation and Services Agreement,
the Declaration of Reciprocal Easements, Restrictions and Covenants, the Site
Lease and the Space Lease).
(b) A certificate of the Secretary or an Assistant Secretary of each
Credit Party certifying the names and true signatures of the officers of such
Credit Party who are authorized to sign this Amendment and the documents
delivered in connection herewith to which such Credit Party is a party.
(c) A certificate of good standing of SCM from the Secretary of State of
Delaware.
(d) A copy of the Governing Documents of SCM, attached to which is a
certificate of the Secretary or an Assistant Secretary of SCM certifying that
such copies are true, complete and accurate and that the same have not been
amended or modified and are in full force and effect.
(e) (i) An opinion of Xxxxxx and Xxxxx, counsel for the Credit Parties,
covering such matters relating to this Amendment as the Agent shall
reasonably request and (ii) an opinion of Xxxxxxx & Xxxx, special Maine
counsel to the Credit Parties, covering such matters relating to this
Amendment as the Agent shall reasonably request.
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(f) A certificate signed by a duly authorized officer of the Guarantor
certifying that (i) the representations and warranties contained in Section 3
hereof are true and correct on and as of the date of such certificate as
though made on and as of such date, (ii) the representations and warranties
contained in Section 6.1 of the Credit Agreement are true and correct (after
giving effect to SCM as a Borrower thereunder) on and as of the date of such
certificate as though made on and as of such date, except to the extent that
such representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall have been true
and correct on and as of such earlier date) and (iii) no Default or Event of
Default has occurred and is continuing.
(g) Evidence that (i) the transactions contemplated by the Purchase
Agreement have closed on terms and pursuant to documentation satisfactory to
the Agents, and that the purchase price of the Acquired Business does not
exceed $44,770,000 in cash and $7,000,000 in the form of the SDW Subordinated
Note (subject to purchase price adjustments set forth in the Purchase
Agreement), and (ii) the assets constituting the Acquired Business are free
and clear of all Liens except for Liens permitted by the Credit Agreement.
(h) Appropriate Uniform Commercial Code financing statements (naming the
Agent as secured party and SCM and Central as debtors), appropriate UCC-3
amendments reflecting the name change of Xxxxx-Bridge Industries, Inc., and
appropriate UCC-3 termination statements and other releases (including a lien
release letter from Chemical Bank, now known as The Chase Manhattan Bank).
(i) A certificate executed by the chief financial officer of each Credit
Party to the effect that such Credit Party is solvent after giving effect to
the transactions contemplated by this Amendment and the Purchase Agreement.
(j) (i) Audited financial statements (including an income statement,
cash flow statement and balance sheet) of the Acquired Business for the
fiscal year ended September 30, 1997, prepared in accordance with GAAP and
accompanied by an unqualified opinion of Ernst & Young and/or Deloitte &
Touche, which financial statements shall reveal results at least as favorable
as the historical PRO FORMA financial statements of the Acquired Business
previously delivered to the Agents, (ii) a PRO FORMA balance sheet of the
Guarantor and its Subsidiaries as of September 30, 1997, adjusted to give
effect to the closing of the Purchase Agreement and the transactions
contemplated thereby, and (iii) to the extent heretofore delivered to the
Guarantor, all of the financial statements, notes thereto and reports thereon
described in Sections 5.5 and 12.6(a) of the Purchase Agreement.
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(k) A duly executed PRO FORMA Borrowing Base Certificate as of the date
hereof, after giving effect to the closing of the Purchase Agreement and the
transactions contemplated thereby.
(l) Collateral Access Agreements, duly executed by SDW with respect to
each parcel of property leased by SDW or its Affiliates to a Credit Party.
(m) A Lockbox Agreement, substantially in the form of Exhibit A, duly
executed by SCM and the lockbox bank party thereto.
(n) Revolving Notes substantially in the form of Exhibit B, duly executed
by SCM in favor of each Lender.
(o) The business plan of the Credit Parties, together with a certificate
of an Authorized Officer certifying that such business plan has been prepared
in good faith based upon the assumptions contained therein and all
information currently available to it and that such Authorized Officer is not
aware of any information contained in such business plan which is false or
misleading, which business plan shall reveal results at least as favorable as
the draft projections for the Acquired Business previously delivered to the
Agents.
(p) A certificate of insurance naming the Agent as loss payee and an
additional insured.
(q) Evidence that, after giving effect to the Loans to be made on the
effective date of this Amendment, there will be Unused Availability in an
amount satisfactory to the Agents.
(r) An amendment to the Security Agreement, substantially in the form of
Exhibit C, duly executed by each Credit Party.
(s) A consent to collateral assignment, substantially in the form of
Exhibit D, duly executed by SDW.
(t) An amendment to the Guaranty, substantially in the form of Exhibit E,
duly executed by the Guarantor.
(u) An amendment to the Contribution Agreement, substantially in the form
of Exhibit F, duly executed by each Borrower.
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(v) A certificate of amendment to the certificate of incorporation of
Xxxxx-Bridge Industries, Inc., certified by the Secretary of State of
Delaware, showing that it changed its name to Spinnaker Coating, Inc.
(w) Such other documents, instruments, opinions, materials and
information as the Agent or the Collateral Agent may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES. Each
of the Credit Parties represents and warrants as follows:
(a) The execution, delivery and performance by such Credit Party of this
Amendment and the documents delivered in connection herewith to which such
Credit Party is a party (i) are within such Credit Party's corporate powers
and authority, have been duly authorized by all necessary corporate action
and do not contravene (A) such Credit Party's Governing Documents, (B) any
Requirement of Law applicable to it or any of its properties or (C) any
franchise, license, permit, indenture, contract, lease, agreement, instrument
or other commitment to which it is a party or by which it or any of its
properties are bound, (ii) will not result in a Default or an Event of
Default and (iii) will not result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter acquired
by such Credit Party (other than Liens permitted by the Credit Agreement).
(b) This Amendment and the documents delivered in connection herewith to
which such Credit Party is a party constitute the legal, valid and binding
obligations of such Credit Party enforceable against such Credit Party in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or similar laws affecting creditor's rights generally
and general principles of equity.
(c) There is no pending or, to the best of its knowledge, threatened
litigation, proceeding, inquiry or other action seeking an injunction or
other restraining order, damages or other relief with respect to the
transactions contemplated by this Amendment, the Purchase Agreement or the
transactions contemplated hereby and thereby or any Credit Party's other
business activities.
(d) Since September 30, 1997, there has occurred no material adverse
change in the financial condition, operations, assets or prospects of the
Acquired Business.
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(e) (i) All consents, filings and approvals required in connection with
execution, delivery and performance by SDW or any Credit Party of the
Purchase Agreement and the documents delivered in connection therewith to
which it is a party have been obtained or made and are in full force and
effect, except such consents, filings and approvals which, if not obtained or
made, could not reasonably be expected to have a Material Adverse Effect or a
material adverse effect on the financial condition, operations, assets or
prospects of the Acquired Business, and (ii) all applicable waiting periods
(including, without limitation, under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976) have expired without any action being taken by any
competent authority.
SECTION 4. ADDITION OF SCM AS BORROWER. By executing this Amendment,
SCM (a) agrees and acknowledges that it shall be obligated as a Borrower
under the Credit Agreement and (b) agrees to be bound by all of the terms and
conditions set forth in the Credit Agreement and the other Credit Documents
applicable to a Borrower, in each case as if SCM were an original signatory
to the Credit Agreement.
SECTION 5. REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Credit Agreement to (i) "this Agreement,"
"hereunder," "hereof," "herein" and words of like import, and such words or
words of like import in each reference in the Credit Documents, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended hereby, all of the terms and
provisions of the Credit Agreement shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as an amendment to or a
waiver of any right, power or remedy of the Agent or the Lenders under any of
the Credit Documents, or constitute an amendment to or a waiver of any
provision of any of the Credit Documents.
(d) This Amendment shall be deemed to be a Credit Document for all
purposes.
SECTION 6. EXECUTION IN COUNTERPARTS; ETC. 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
one and the same instrument. This Amendment and each of the other documents
delivered in connection herewith may be executed and delivered by
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telecopier with the same force and effect as if the same was a fully executed
and delivered original manual counterpart.
SECTION 7. EXPENSES. The Borrowers shall, jointly and severally, pay
for all of the reasonable costs and expenses incurred by the Agent and the
Collateral Agent in connection with the transactions contemplated by this
Amendment, including, without limitation, the reasonable fees and expenses of
counsel to the Agent.
SECTION 8. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
BORROWERS
CENTRAL PRODUCTS COMPANY
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
SPINNAKER COATING, INC.,
formerly known as
XXXXX-BRIDGE INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
ENTOLETER, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
SPINNAKER COATING-MAINE, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
GUARANTOR
SPINNAKER INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President,
Corporate Development
[Signature page to Fifth Amendment]
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AGENT
BT COMMERCIAL CORPORATION, as Agent
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
COLLATERAL AGENT
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as Collateral Agent
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
ISSUING BANK
BANKERS TRUST COMPANY, as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
LENDERS
BT COMMERCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
[Signature page to Fifth Amendment]
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