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EXHIBIT 4.2(B)
FIRST AMENDMENT AND EXTENSION
TO
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This First Amendment and Extension ("First Amendment"), dated and
effective as of December 17, 1999 (the "Replacement Date") is made by and
between SERVOTRONICS, INC. ("Servo") and TSV XXXX, INC. formerly known as TSV,
Inc. ("TSV"), Delaware corporations having their principal offices at 0000 Xxxxx
Xxxxxx, X.X. Xxx 000, Xxxx, Xxx Xxxx 00000 (Servo and TSV are sometimes
collectively and severally referred to herein as the "Company") and FLEET
NATIONAL BANK, a national banking association and successor to Fleet Bank, with
an office at Fleet Bank Building, Ten Fountain Plaza, Buffalo, New York 14202
("Bank").
STATEMENT OF THE PREMISES
The Company and Fleet Bank have previously entered into a Letter of
Credit and Reimbursement Agreement dated as of December 1, 1994 (the
"Reimbursement Agreement"); and
The Erie County Industrial Development Agency (the "Agency") issued its
Industrial Development Revenue Bonds (1994 Servotronics, Inc. Project) in the
aggregate principal amount of $5,000,000 (the "Bonds") for the purpose of
assisting in financing the Project, as defined in the Reimbursement Agreement;
and
WHEREAS, the Bank issued its irrevocable Letter of Credit (the
"Original Letter of Credit") to facilitate the issuance and sale of the Bonds,
all in accordance with the terms and conditions of the Reimbursement Agreement;
and
WHEREAS, the Original Letter of Credit will expire on December 21, 1999
and the Company has requested that Bank renew and extend the Original Letter of
Credit for a five-year period; and
WHEREAS, Bank has agreed to renew and extend such Original Letter of
Credit, provided that the Company agrees to the modification of certain
financial covenants in the Reimbursement Agreement and certain other changes to
the Reimbursement Agreement and the Company has agreed thereto, all upon the
terms and conditions set forth herein.
STATEMENT OF CONSIDERATION
Accordingly, in consideration of the premises and under the authority
of Section 5-1103 of the New York General Obligations Law, the Company and Bank
agree as follows:
AGREEMENT
1. AMENDMENT. Effective upon the satisfaction of all conditions
specified in Section 4 hereof, the Reimbursement Agreement is hereby amended as
follows:
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Page 2 of 10 EXHIBIT 4.2(B)
A. The first recital of the Reimbursement Agreement is hereby
amended and restated to read in its entirety as follows:
WHEREAS, the Company has applied to the Erie County Industrial
Development Agency (the "Agency") to issue its Industrial Development Revenue
Bonds (1994 Servotronics, Inc. Project) in the aggregate principal amount of
$5,000,000 for the purpose of assisting in financing the project described below
and paying certain costs incidental thereto; and
B. Section 1.01 of the Reimbursement Agreement is hereby
amended by amended and restating the following definitions in their entirety to
read as follows:
"BANK" shall mean Fleet National Bank, a national banking
corporation having an office at 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
"LETTER OF CREDIT" means the irrevocable transferable direct
pay letter of credit in the form of Exhibit A to this Agreement, dated the
Closing Date, issued by the Bank in favor of the Trustee, and any replacement,
amendment or extension thereof.
C. Section 3.02 of the Reimbursement Agreement is hereby
amended and restated in its entirety to read as follows:
3.02 LETTER OF CREDIT FEE. On December 22, 1994 and on each
March 22, June 22, September 22 and December 22 thereafter (or, if any such day
is not a Business Day, the immediate succeeding Business Day) so long as any
credit remains available to the Trustee under the Letter of Credit, the Company
shall pay to the Bank a Letter of Credit fee equal to one percent ( 1%) per
annum of the sum of (a) the principal amount of all Outstanding Bonds on such
date and (b) if such date falls within a Variable Interest Rate Period, an
amount equal to 60 days' accrued interest on the principal amount of all
Outstanding Bonds on such date computed assuming an interest rate of twelve
percent (12%) per annum, or, if such date falls within a Fixed Interest Rate
Period, an amount equal to 210 days' accrued interest on the principal amount of
all Outstanding Bonds on such date computed at the Fixed Interest Rate. There
shall be no reduction or refund of any portion of such Letter of Credit fee in
the event the Letter of Credit expires or is drawn upon, reduced, terminated or
otherwise modified after the date such Letter of Credit fee is computed in
advance for each three month period. In the event any fees payable under the
terms hereof are not paid on or before the date the same are due and payable,
the payment of such fees shall be accompanied by interest thereon, at a rate
equal to two percent (2%) per annum in excess of the Stated Prime Rate from time
to time, from the date such payment becomes due until paid in full.
D. The following new Section 10.13 is added to the
Reimbursement Agreement immediately following Section 10.12:
10.13 The Company has reviewed the "Year 2000 Risk" (that is
the risk that computer applications used by the Company and/or it suppliers,
vendors and customers may be unable to recognize and perform without error
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999) and represents that, to the best of its knowledge after such
review, it is taking such action as may be necessary to ensure that the Year
2000 Risk will not materially adversely affect its business operations and/or
financial condition. Notwithstanding the provisions of this Section or Section
11.15, the Company gives no representation with respect to suppliers, vendors or
customers not controlled by the Company except that it has made a reasonable
effort to obtain assurances as to Year 2000 Risk from entities with whom the
Company has material business relationships, and the Company has received from
such entities no reports advising of a Year 2000 Risk materially adversely
affecting the Company's business operations and/or financial condition.
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Page 3 of 10 EXHIBIT 4.2(B)
E. Section 11.02 of the Reimbursement Agreement is hereby
amended and restated to read in its entirety as follows:
11.02 NET WORKING CAPITAL. Will maintain, (i) as of December
31, 1999, Net Working Capital of not less than $7,500,000 and (ii) as at the end
of each fiscal quarter thereafter, Net Working Capital of not less than
$7,500,000, increasing each fiscal year, commencing December 31, 2000, by two
percent (2%) of the amount used on the previous December 31 for purposes of
testing this covenant (e.g. for the quarters ending March 31, 2000, June 30,
2000 and September 30, 2000, not less than $7,500,000; for the quarter ending
December 31, 2000, not less than $7,650,000; for the quarters ending March 31,
2001, June 30, 2001 and September 30, 2001, not less than $7,650,000; for the
quarter ending December 31, 2001, not less than $7,803,000, etc.). If the effect
of any change in Generally Accepted Accounting Principles would cause a
violation of the covenant set forth in this Section 11.02 on any testing date
during the term of this Agreement and such covenant would not be violated if
such change in Generally Accepted Accounting Principles were disregarded in
making the calculations set forth in this Section, then such covenant shall not
be deemed violated as of the applicable testing date.
F. Section 11.03 of the Reimbursement Agreement is hereby
amended and restated to read in its entirety as follows:
11.03 TANGIBLE NET WORTH. Will maintain, (i) as of December
31, 1999, a Tangible Net Worth of not less than $9,000,000 and (ii) as of the
end of each fiscal quarter thereafter, Tangible Net Worth of not less than
$9,000,000, increasing each fiscal year, commencing December 31, 2000, by two
percent (2%) of the amount used on the previous December 31 for purposes of
testing this covenant (e.g. for the quarters ending March 31, 2000, June 30,
2000 and September 30, 2000, not less than $9,000,000; for the quarter ending
December 31, 2000, not less than $9,180,000; for the quarters ending March 31,
2001, June 30, 2001 and September 30, 2001, not less than $9,180,000; for the
quarter ending December 31, 2001, not less than $9,363,600, etc.). If the effect
of any change in Generally Accepted Accounting Principles would cause a
violation of the covenant set forth in this Section 11.03 on any testing date
during the term of this Agreement and such covenant would not be violated if
such change in Generally Accepted Accounting Principles were disregarded in
making the calculations set forth in this Section, then such covenant shall not
be deemed violated as of the applicable testing date.
G. Section 11.04 of the Reimbursement Agreement is hereby
amended and restated to read in its entirety as follows:
11.04 DEBT TO WORTH. Will maintain, at the end of each of its
fiscal quarters for the four quarters then ended, a ratio of its Liabilities to
Tangible Net Worth of not more than 1.5 to 1.0.
H. Section 11.05 of the Reimbursement Agreement is hereby
amended and restated to read in its entirety as follows:
11.05 DEBT SERVICE COVERAGE RATIO. Will have a Debt Service
Coverage Ratio of not less than 1.0 to 1.0, for the four quarters then ended, as
of the end of each fiscal quarter.
I. The following new Section 11.15 is added to the
Reimbursement Agreement immediately following Section 11.14:
11.15 The Company will be Year 2000 Compliant by January 1,
2000. For purposes of this Section, "Year 2000 Compliant" means, with regard to
the Company and/or its suppliers, vendors and customers (subject, however, to
the last sentence of Section 10.13), that all software, embedded microchips, and
other processing capabilities utilized by, and material to the business
operations or financial condition of, such entity are able to interpret and
manipulate data on and involving all calendar dates correctly and without
causing any abnormal ending scenario, including in relation to dates on and
after January 1, 2000.
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Page 4 of 10 EXHIBIT 4.2(B)
J. The following new Sections 14.12 through 14.15 are added to
the Reimbursement Agreement immediately following Section 14.11:
14.12 PARTICIPATION. Bank shall have the unrestricted right at
any time and from time to time, and without the consent of or notice to the
Company or any guarantor, to grant to one or more banks or other financial
institutions other than securities brokers, dealers and investment bankers
(each, a "Participant") participating interests in Bank's obligations hereunder
and/or any or all of the Reimbursement obligations held by Bank hereunder. In
the event of any such grant by Bank of a participating interest to a
Participant, whether or not upon notice to the Company, Bank shall remain
responsible for the performance of its obligations hereunder and the Company
shall continue to deal solely and directly with Bank in connection with Bank's
rights and obligations hereunder. Bank may furnish any information concerning
the Company in its possession from time to time to prospective Participants,
provided that, if any information is provided which is not publicly available
(it being understood that "publicly available" shall include non-confidential
filings made by the Company with the Securities and Exchange Commission which
shall have become available to the public and shall exclude information which
has become publicly available in violation of the provisions of this Section)
Bank shall require any such prospective Participant to agree in writing (a true
copy of which shall be furnished to the Company) to maintain the confidentiality
of all such information which is not publicly available and the Company shall be
identified in that written agreement as a beneficiary of that agreement with the
right to enforce it.
14.13 SETOFF. The Company and any guarantor hereby grant to
Bank, a lien, security interest and right of setoff as security for all
liabilities and obligations to Bank, whether now existing or hereafter arising,
upon and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of Bank or any
entity under the control of Fleet Financial Group, Inc., or in transit to any of
them. Upon the occurrence and continuing existence of any Event of Default
(which shall not have been cured within any applicable grace period), Bank may
set off the same or any part thereof and apply the same to any liability or
obligation of the Company and any guarantor even though unmatured and regardless
of the adequacy of any other collateral securing any Loan. ANY AND ALL RIGHTS TO
REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES ANY LOAN, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR ANY
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
14.14 MAXIMUM INTEREST RATE. All agreements between the
Company and any guarantors and Bank are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of maturity
of the indebtedness evidenced hereby or otherwise, shall the amount paid or
agreed to be paid to Bank for the use or the forbearance of the indebtedness
evidenced by this Agreement or any other Financing Document exceed the maximum
permissible under applicable law. As used herein, the term "applicable law"
shall mean the law in effect as of the date hereof provided, however that in the
event there is a change in the law which results in a higher permissible rate of
interest, then this Agreement, or such other Financing Documents, as the case
may be, shall be governed by such new law as of its effective date. In this
regard, it is expressly agreed that it is the intent of the Company and Bank in
the execution, delivery and acceptance of this Agreement to contract in strict
compliance with the laws of the State of New York from time to time in effect.
If, under or from any circumstances whatsoever, fulfillment of any provision
hereof or of any of the Financing Documents at the time performance of such
provision shall be due, shall involve transcending the limit of such validity
prescribed by applicable law then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
any circumstances whatsoever Bank should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be excessive
interest
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Page 5 of 10 EXHIBIT 4.2(B)
shall be applied to the reduction of the principal obligations evidenced by this
Agreement or such other Financing Documents, as the case may be and not to the
payment of interest. This provision shall control every other provision of all
agreements between the Company, any guarantors and Bank.
14.15 REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of
an officer of Bank as to the loss, theft, destruction or mutilation of this
Reimbursement Agreement or any Financing Document delivered hereunder, which
states, among other things that Bank has sole ownership of such document or, as
applicable, the rights thereunder, which contains an indemnification against
claims and associated expenses of persons making claims with respect to such
lost document, in form and substance reasonably acceptable to the Company, and
by which Bank agrees to surrender (without demand for duplicate payment), as
applicable, such Reimbursement Agreement or other Financing Document upon any
recovery thereof, the Company will issue, in lieu thereof, a replacement
Reimbursement Agreement, note or other security document in the same principal
amount thereof and otherwise of like tenor.
K. Effective on the Replacement Date, Exhibit A of the
Reimbursement Agreement is hereby amended by the attachment thereto of the
amendment attached hereto as Exhibit A.
2. EXTENSIONS. Effective as of the Replacement Date, the Letter of
Credit is extended for an additional five-year period which extension shall be
effected by the issuance of an amendment to letter of credit in the form
attached to this Amendment and Extension as Exhibit A.
3. REPRESENTATIONS AND WARRANTIES. The Company makes the following
representations and warranties to Bank which shall be deemed to be continuing
representations and warranties so long as any obligations, including
indebtedness of the Company to Bank arising under the Reimbursement Agreement or
any note delivered pursuant thereto remain unpaid:
A. AUTHORIZATION. The Company has full power and authority to
borrow hereunder and to execute, deliver and perform this First Amendment and
any documents delivered in connection with it and all other related documents
and transactions, all of which have been duly authorized by all proper and
necessary corporate action. The execution and delivery of this First Amendment
by the Company will not violate the provisions of, or cause a default under, the
Company's Certificate of Incorporation or By-Laws or any agreement to which the
Company is a party or by which it or its assets are bound.
B. BINDING EFFECT. This First Amendment has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms.
C. CONSENTS; GOVERNMENTAL APPROVALS. No consent, approval or
authorization of, or registration, declaration or filing with, any governmental
body or authority or any other party is required in connection with the valid
execution, delivery or performance of this First Amendment or any other document
executed and delivered therewith or in connection with any other transactions
contemplated hereby.
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Page 6 of 10 EXHIBIT 4.2(B)
D. NO EVENTS OF DEFAULT. There is, on the date hereof, no
event or condition which constitutes an Event of Default under any of the Loan
Documents or which, with notice and/or the passage of time, would constitute an
Event of Default.
E. NO MATERIAL MISSTATEMENTS. Neither this First Amendment nor
any document delivered to Bank by or on behalf of the Company to induce Bank to
enter into this First Amendment contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements herein or
therein not misleading in light of the circumstances in which they were made.
4. CONDITIONS OF EFFECTIVENESS. This First Amendment shall become
effective when and only when Bank shall have received counterparts of this First
Amendment executed by the Company and Bank and the following conditions shall
have been fulfilled:
A. DOCUMENTS. All instruments, certificates and agreements to
be furnished to the Bank hereunder shall be of such form and content as the Bank
shall reasonably require, and the Company shall furnish such consents,
authorizations and other instruments and agreements as the Bank may reasonably
deem necessary to effectuate the intent of this First Amendment.
B. OPINION OF COUNSEL. Counsel to the Company shall have
delivered to the Bank an opinion in form and substance satisfactory to the Bank.
C. AUTHORIZATION. The Company shall have taken appropriate
corporate action to authorize, and the Company's Board of Directors shall have
adopted resolutions authorizing the execution and delivery of this First
Amendment and the taking of all action called for by this First Amendment, and
the Company shall have furnished to Bank certified copies of all such corporate
action and Board resolutions and such other certified corporate documents as the
Bank may request.
D. COSTS AND EXPENSES. The Company shall have complied with
Section 6 of this First Amendment.
E. ACKNOWLEDGMENT. G. N. Metals Products, Inc., The Ontario
Knife Company and Queen Cutlery Company, Inc. shall each have delivered to Bank
an Acknowledgment in form and substance satisfactory to Bank and such additional
documents as Bank or its counsel may reasonably require and all documents,
instruments and other legal matters in connection with this First Amendment
shall be satisfactory in form and substance to Bank and its counsel.
5. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS.
A. Upon the effectiveness hereof, each reference in the
Reimbursement Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import, and each reference in the Loan Documents to the
Reimbursement Agreement shall mean and be a reference to the Reimbursement
Agreement as amended by this First Amendment.
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Page 7 of 10 EXHIBIT 4.2(B)
B. The Reimbursement Agreement, as amended by this First
Amendment, represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof. This First Amendment
supersedes all prior negotiations and any course of dealing between the parties
with respect to the subject matter hereof. This First Amendment shall be binding
upon the Company and its successors and assigns, and shall inure to the benefit
of, and be enforceable by, Bank and each of its successors and assigns. The
Reimbursement Agreement, as amended hereby, is in full force and effect and, as
so amended, is hereby ratified and reaffirmed in its entirety. The Company
acknowledges and agrees that the Reimbursement Agreement (as amended by this
First Amendment), the Collateral Lease Assignment, the Pledge Agreement, the
Agency Mortgage and all other Financing Documents to which the Company is a
party are in full force and effect, that the Company's obligations thereunder
and under this First Amendment are its legal valid and binding obligations
enforceable against it in accordance with the terms thereof and hereof, and it
has no defense, whether legal or equitable, setoff or counterclaim to the
payment and performance of such obligations.
C. The execution, delivery and effectiveness of this First
Amendment shall not operate as a waiver of any right, power or remedy of Bank
under the Reimbursement Agreement, nor constitute a waiver of any provision of
the Reimbursement Agreement.
6. COSTS AND EXPENSES. The Company agrees to pay on demand all costs
and expenses of Bank in connection with the preparation, negotiation,
administration, execution and delivery of this First Amendment and the other
documents related hereto, including the reasonable fees, charges and
disbursements of counsel for Bank.
7. GOVERNING LAW. Pursuant to Section 5-1401 of the New York General
Obligations Law, the laws of the State of New York shall govern the validity,
construction, enforcement and interpretation of this First Amendment in whole
without regard to any rules of conflicts-of-laws that would require the
application of the laws of any jurisdiction other than the State of New York.
8. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not limit or otherwise affect
the meanings of this First Amendment or be used to construe its provisions.
9. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed to be an original, and all of which
taken together shall constitute one and the same First Amendment, regardless of
whether or not the execution by all parties shall appear on any single
counterpart. Delivery of an executed counterpart of a signature page to this
First Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this First Amendment.
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Page 8 of 10 EXHIBIT 4.2(B)
IN WITNESS WHEREOF, the parties hereto have each caused a counterpart
of this First Amendment to be executed by their respective representatives
thereunto duly authorized, as of the date first above written.
SERVOTRONICS, INC.
By: /S/XXX X. XXXXX, TREASURER
--------------------------
Xxx X. Xxxxx
Treasurer and Chief Financial
Officer
TSV XXXX, INC.
By: /S/XXX X. XXXXX, TREASURER
--------------------------
Xxx X. Xxxxx
Treasurer and Chief Financial
Officer
FLEET NATIONAL BANK
By: /S/XXXXXX X. XXX
--------------------------
Xxxxxx X. Xxx
Vice President
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Page 9 of 10 EXHIBIT 4.2(B)
STATE OF NEW YORK )
: SS.:
COUNTY OF ERIE )
On the 17th day of December in the year 1999 before me personally came
Xxx X. Xxxxx to me known, who, being by me duly sworn, did depose and say that
he resides in Lancaster, New York; that he is the Treasurer and Chief Financial
Officer of Servotronics, Inc., the corporation described in and which executed
the above instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
/S/Pandora X. Xxxxxxx
---------------------------------
Notary Public
PANDORA X. XXXXXXX
Notary Public, State of New York
Qualified in Erie County
Commission Expires March 30, 0000
XXXXX XX XXX XXXX )
: SS.:
COUNTY OF ERIE )
On the 17th day of December in the year 1999 before me personally came
Xxx X. Xxxxx to me known, who, being by me duly sworn, did depose and say that
he resides in Lancaster, New York; that he is the Treasurer of TSV XXXX, Inc.,
the corporation described in and which executed the above instrument; and that
he signed his name thereto by order of the board of directors of said
corporation.
/S/Pandora X. Xxxxxxx
---------------------------------
Notary Public
PANDORA X. XXXXXXX
Notary Public, State of New York
Qualified in Erie County
Commission Expires March 30, 2000
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Page 10 of 10 EXHIBIT 4.2(B)
STATE OF NEW YORK )
: SS.:
COUNTY OF ERIE )
On this 17th day of December, 1999 before me personally came Xxxxxx X.
Xxx to me known, who, being by me duly sworn, did depose and say that he resides
in Tonawanda, New York; that he is a Vice President of Fleet National Bank, the
banking association described in and which executed the above instrument; and
that he signed his name thereto by order of the board of directors of said
association.
/S/Xxxxxx X. Xxxxxxxx
---------------------------------
Notary Public
XXXXXX X. XXXXXXXX
Notary Public, State of New York
No.02PO4930661
Qualified in Erie County
Certificate Filed in Erie County
Commission Expires April 18, 2000
