THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of March 22, 2000, is entered into between KATY
INDUSTRIES, INC., a Delaware corporation (the "Company"), the several
financial institutions party to the Credit Agreement referred to below
(the "Banks"), and Bank of America, N.A., as letter of credit issuing bank
and as administrative agent for the Banks (the "Agent").
RECITALS
WHEREAS, the Company, the Banks, and the Agent are parties to the
Amended and Restated Credit Agreement dated as of December 11, 1998, as
amended by the First Amendment thereto dated as of November 18, 1999 (the
"Credit Agreement"), pursuant to which the Banks have extended certain credit
facilities to the Company; and
WHEREAS, the Company has notified the Agent and the Banks that the
Company will voluntarily reduce the Facility A Commitment and the
Commercial L/C Commitment; and
WHEREAS, the Company, the Banks, and the Agent now hereby wish to
amend the Credit Agreement in certain respects, all as set forth in
greater detail below;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Amendment to Section 1.01. The definition of
"Commercial L/C Commitment" in Section 1.01 of the Credit Agreement is
amended by deleting the amount "$30,000,000" and replacing it with the
amount "$20,000,000."
(b) Amendment to Schedule 2.1. Schedule 2.1 of the
Credit Agreement is replaced with Schedule 2.1 to this Amendment. The
Borrower acknowledges and agrees that neither the Agent's nor the Banks'
present agreement to permit a reduction of the Facility A Commitment by an
amount other than that specified in Section 2.5 of the Credit Agreement
shall be deemed to create a course of dealing or otherwise obligate the
Agent or the Banks to permit a similar reduction under the same or similar
circumstances in the future except as provided in Section 2.5 of the Credit
Agreement.
(c) Amendment to Section 8.19. Section 8.19 of the
Credit Agreement is hereby amended to delete the ratios set forth therein
and replace them with the following:
Quarters Ending Maximum Leverage Ratio
Through September 30, 1999 3.50 to 1.00
December 31, 1999 through
September 30, 2000 3.25 to 1.00
December 31, 2000 through
Facility B Revolving Termination Date 3.00 to 1.00
3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and each of the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any registration
with, consent or approval of, notice to or action by, any person
(including any Governmental Authority) in order to be effective and
enforceable. The Credit Agreement as amended by this Amendment constitutes
a legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its respective terms, without defense,
counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Credit Agreement are true and correct as though made on and
as of the date hereof (except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were
true and correct as of such earlier date).
(d) The Company is entering into this Amendment on
the basis of its own investigation and for its own reasons, without reliance
upon the Agent and the Banks or any other person.
4. Effective Date. This Amendment will become effective on
the first Business Day that each of the following conditions precedent has
been satisfied (the "Effective Date"):
(a) The Agent has received from the Company and the
Required Banks a duly executed original or facsimile of this Amendment,
together with a duly executed original or facsimile of a Guarantor
Acknowledgment and Consent in the form attached hereto.
(b) The Agent has received from the Company payment,
for the account of each Bank party to this Amendment, an upfront fee equal
to 0.05% of such Bank's Commitments as calculated after giving effect to
this Amendment.
(c) All representations and warranties contained
herein are true and correct as of the Effective Date.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Credit Agreement are and shall remain in
full force and effect and all references therein and in the other Loan
Documents to the Credit Agreement shall henceforth refer to the Credit
Agreement as amended by this Amendment. This Amendment shall be deemed
incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure
to the benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are intended in
connection with this Amendment.
(c) This Amendment shall be governed by and construed
in accordance with the law of the State of California (without regard to
principles of conflicts of laws).
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) This Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties
hereto with reference to the matters discussed herein and therein.
This Amendment supersedes all prior drafts and communications with respect
thereto. This Amendment may not be amended except in accordance with the
provisions of Section 11.1 of the Credit Agreement.
(f) If any term or provision of this Amendment shall
be deemed prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions of this
Amendment or the Credit Agreement, respectively.
(g) Company covenants to pay to or reimburse the
Agent and the Banks, upon demand, for all costs and expenses (including
Attorney Costs) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
KATY INDUSTRIES, INC.
By:
Name:
Title:
BANK OF AMERICA, N.A., as Agent,
Issuing Bank, and a Bank
By:
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
(formerly known as LaSalle National
Bank), as Managing Agent and a Bank
By:
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Bank
By:
Name:
Title:
MERCANTILE BANK NATIONAL ASSOCIATION,
as a Bank
By:
Name:
Title:
THE NORTHERN TRUST COMPANY, as a Bank
By:
Name:
Title:
NORWEST BANK COLORADO NATIONAL
ASSOCIATION, as a Bank
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By:
Name:
Title:
UNION PLANTERS BANK, N.A., as a Bank
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as a Bank
By:
Name:
Title:
GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, each a Guarantor with respect to the Company's
obligations to the Agent and the Banks under the Credit Agreement, each
hereby (i) acknowledge and consent to the execution, delivery and
performance by Company of the foregoing Second Amendment to Credit Agreement
("Amendment"), and (ii) reaffirm and agree that the respective guaranty to
which the undersigned is party and all other documents and agreements
executed and delivered by the undersigned to the Agent and the Banks in
connection with the Credit Agreement are in full force and effect, without
defense, offset or counterclaim. (Capitalized terms used herein have the
meanings specified in the Amendment.)
IN WITNESS WHEREOF, each Guarantor hereto has caused its duly
authorized officers to execute and deliver this acknowledgement and
consent as of March 22, 2000.
Aetna Liquidating Company,
as Guarantor
By:
Name:
Title:
American Gage & Machine Company,
as Guarantor
By:
Name:
Title:
Bach Xxxxxxx, Inc.,
as Guarantor
By:
Name:
Title:
Xxxx Universal, Inc.,
as Guarantor
By:
Name:
Title:
Chatham Resource Recovery Systems, Inc.,
as Guarantor
By:
Name:
Title:
Duckback Products, Inc.,
as Guarantor
By:
Name:
Title:
Xxxxxx Iron Works Company,
as Guarantor
By:
Name:
Title:
XX Xxxxxxx International Limited,
as Guarantor
By:
Name:
Title:
GC/Waldom Electrical, Inc.
(formerly known as XX Xxxxxxx, Inc.),
as Guarantor
By:
Name:
Title:
Glit/DISCO, Inc.,
as Guarantor
By:
Name:
Title:
Glit/Gemtex, Inc.,
as Guarantor
By:
Name:
Title:
Hallmark Holdings, Inc.,
as Guarantor
By:
Name:
Title:
Xxxxxxxx Precision Metals, Inc.,
as Guarantor
By:
Name:
Title:
Katy International, Inc.
(formerly named HMO, Inc.),
as Guarantor
By:
Name:
Title:
Katy-Xxxxxxx, Inc.,
as Guarantor
By:
Name:
Title:
K-S Energy Corp.,
as Guarantor
By:
Name:
Title:
Panhandle Industrial Company, Inc.,
as Guarantor
By:
Name:
Title:
PTR Machine Corp. (formerly known
as Xxxxxx Machinery Company), as
Guarantor
By:
Name:
Title:
Savannah Energy Systems Company,
as Guarantor
By:
Name:
Title:
Wabash Liquidation Corp.
(formerly known as Xxxxx Machines,
Inc.), as Guarantor
By:
Name:
Title:
Xxxxx Products, Inc.,
as Guarantor
X.X. Xxxxx Xxxx Preserving Company,
as Guarantor
By:
Name:
Title:
Xxxxx Industries, Inc.,
as Guarantor
By:
Name:
Title:
WP Liquidating Corp.,
as Guarantor
By:
Name:
Title:
SCHEDULE 2.1
Commitments and Pro Rata Shares
Facility A Revolving Loans Commitments
Bank Commitment Pro Rata Share
Bank of America, N.A. $ 4,509,742.31 18.91891894%
LaSalle Bank, N.A. $ 3,865,493.40 16.00000000%
Union Bank of California $ 3,221,244.50 13.51351351%
Mercantile Bank $ 3,221,244.50 13.51351351%
Norwest $ 3,221,244.50 13.51351351%
The Northern Trust Company $ 0.0 0.00000000%
KeyBank $ 1,932,746.70 8.10810811%
Union Planters Bank $ 1,932,746.70 8.00000000%
U.S. Bank $ 1,932,746.70 8.10810811%
TOTAL $ 23,837,209.31 100.00000000%
Facility B Revolving Loans Commitments
Bank Commitment Pro Rata Share
Bank of America, N.A. $ 26,860,465.11 16.66666665%
LaSalle Bank, N.A. $ 23,023,255.81 14.00000000%
Union Bank of California $ 19,186,046.51 11.90476191%
Mercantile Bank $ 19,186,046.51 11.90476191%
Norwest $ 19,186,046.51 11.90476191%
The Northern Trust Company $ 19,186,046.51 11.00000000%
KeyBank $ 11,511,627.91 7.14285714%
Union Planters Bank $ 11,511,627.91 7.00000000%
U.S. Bank $ 11,511,627.91 7.14285714%
TOTAL $161,162,790.69 100.00000000%
Bank Total Commitments
Bank Total Commitment Pro Rata Share
Bank of America, N.A. $ 31.370,207.42 16.95686888%
LaSalle Bank, N.A. $ 26,888,749.21 14.00000000%
Union Bank of California $ 22,407,291.01 12.11204920%
Mercantile Bank $ 22,407,291.01 12.11204920%
Norwest $ 22,407,291.01 12.11204920%
The Northern Trust Company $ 19,186,046.51 10.00000000%
KeyBank $ 13,444,347.61 7.26722952%
Union Planters Bank $ 13,444,347.61 7.00000000%
U.S. Bank $ 13,444,347.61 7.26722952%
TOTAL $185,000,000.00 100.00000000%
