WAIVER AND THIRD AMENDMENT
AND MODIFICATION TO LOAN AGREEMENT
THIS WAIVER AND THIRD AMENDMENT AND MODIFICATION TO LOAN AGREEMENT (the
"Third Amendment") is made effective the 16th day of September, 2000, among THE
JPM COMPANY, a Pennsylvania corporation ("Borrower"), FIRST UNION NATIONAL BANK
(successor by merger to CoreStates Bank, N.A.) in its capacity as agent
("Agent"), and the Lenders (hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Borrower and the Agent have heretofore entered into that
certain Loan Agreement dated April 9, 1998 (the "Agreement") with the financial
institutions signatory thereto from time to time (the "Lenders"), as amended by
that certain Amendment and Modification to Loan Agreement dated December 17,
1998 (the "First Amendment") as further amended by that certain Waiver and
Second Amendment and Modification to Loan Agreement dated May 15, 2000 (the
"Second Amendment") (the Agreement, as amended by the First Amendment and the
Second Amendment, hereinafter referred to as the "Loan Agreement"; capitalized
text not otherwise defined herein shall be ascribed the meanings set forth in
the Loan Agreement); and
WHEREAS, the Borrower has requested that the Lenders increase the Maximum
Amount from $70,000,000 to $75,000,000, waive certain financial covenant
defaults and reset certain financial covenants under the Loan Agreement; and
WHEREAS, the Lenders are willing to increase the Maximum Amount, waive
existing financial covenant defaults and reset certain financial covenants under
the Loan Agreement on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS.
(a) Each of the following definitions contained in Section 1 of the Loan
Agreement is hereby amended and restated as follows:
1.7 "Base Rate" means the sum of (a) the Applicable Base Rate Margin (as
defined in Section 1.6) plus (b) the Prime Rate.
1.47 "Maximum Amount" means Seventy Five Million Dollars ($75,000,000.00),
less any reductions made pursuant to Section 2.1(c) and Section 2.1(d) for
mandatory prepayments made pursuant to Section 4.2(b).
(b) The following definitions are hereby added to Section 1 of the Loan
Agreement in the order indicated:
1.1A "Account Control Agreement" has the meaning provided in Section
5.1(a)(v).
1.5A "Antrum" means Antrum Interface 725, Ltd., a corporation organized and
existing under the laws of Ontario, Canada and a wholly owned Subsidiary of
JPM/Canada.
1.5B "Antrum GSA" means the General Security Agreement dated September 14,
2000 between Borrower and Antrum, pursuant to which Antrum grants a security
interest in all of its personal property to Borrower to secure repayment of the
Antrum Note.
1.5C "Antrum Note" means that Promissory Note dated September 14, 2000
issued by Antrum to Borrower in the original principal amount of U.S.
$5,000,000.
15.D "Antrum Stock" means all of the issued and outstanding shares or other
equity interests in Antrum.
1.9A "Budget" means the consolidated monthly projections prepared by the
Borrower dated September 13, 2000 covering the period from June, 2000 through
December, 2000, which is attached hereto as Exhibit C, as updated with the
consent of the Required Lenders from time to time.
1.10A "Canadian Guaranty" means the Guarantee dated September 14, 2000 from
JPM/Canada to Borrower, pursuant to which JPM/Canada unconditionally guarantees
payment of the Antrum Note.
1.10B "Canadian Pledge" means the Share Pledge Agreement dated September
14, 2000 from JPM/Canada to Borrower, pursuant to which JPM/Canada pledges the
Antrum Stock to Borrower as collateral for the Canadian Guaranty.
1.14B "Code" means the Internal Revenue code of 1986, as amended, and the
regulations promulgated thereunder.
1.24A "Dollar" or "$" means freely transferable U.S. dollars.
1.24B "Domestic Subsidiary" means a Subsidiary of the Borrower which is
organized under the laws of the United States, or the laws of any state therein.
1.32A "Foreign Subsidiary" means a Subsidiary of the Borrower that
qualifies as "controlled foreign corporation" under Section 957 of the Code.
1.36A "HUB Locations" means any storage facility not owned or leased by any
Obligor where inventory of any Obligor is stored prior to sale and/or delivery
to customers pursuant to an agreement between an Obligor and its customer, or
between an Obligor, the Obligor's customer and an unrelated third party.
1.39A "JPM/Canada" means JPM/Canada, Inc., a corporation organized and
existing under the laws of Ontario, Canada and an indirect wholly owned
Subsidiary of Borrower.
1.39B "JPM/Mexico" means The JPM Company de Mexico, S.A. de C.V., a
corporation organized and existing under the laws of Mexico and an indirect
wholly owned Subsidiary of Borrower.
1.39C "JPM/Mexico Note" means that note dated May 3, 1996, issued by
JPM/Mexico to Borrower in the original principal amount of US$2,508,623.
1.48A "McDonald Family" means the former shareholders of Antrum.
1.48B "McDonald Family Earn Out" means the "Additional Payment" obligation
of JPM/Canada to the McDonald Family pursuant to that certain Stock Purchase
Agreement dated June 1, 1998.
1.48C "McDonald Family Letters of Credit" means three (3) letters of credit
issued by the Issuing Bank pursuant to Section 2.4 of the Loan Agreement, each
dated June 28, 1999 (Credits No. SM408959P, SM408960P, and SM408961P, as amended
from time to time), in the aggregate stated amount of US$4,500,000 to secure
repayment of the McDonald Family Earn Out.
1.48D "Mexican Guaranty" means the unconditional, unlimited guaranty of
payment issued by JPM/Mexico to Borrower -unconditionally guarantying payment of
the Pantera Note.
1.49A "Net Worth" means as of any date of determination, the book value of
the assets of the Borrower and its Subsidiaries, determined on a Consolidated
Basis, minus (a) reserves applicable thereto, and minus (b) all of the
liabilities (including accrued and deferred income taxes), all as determined in
accordance with GAAP.
1.52A "Pantera" means Electronica Pantera, S.A. de C.V., a corporation
organized and existing under the laws of Mexico and an indirect wholly owned
Subsidiary of Borrower.
1.52B "Pantera Note" means that note dated January 31, 1999, issued by
Pantera to Borrower in the original principal amount of US$5,000,000.
1.76 "Winsboro Property" means the real estate and industrial facility
owned by Borrower, as successor by merger to The JPM Company of South Carolina,
in Winsboro, South Carolina.
2. AMENDED AND RESTATED NOTES; PRO RATA SHARES. To further evidence the
increase in the Maximum Amount of the Revolver from $70,000,000.00 to
$75,000,000.00, Borrower shall execute and deliver to each Lender a Second
Amended and Restated Revolver Note in the form attached hereto as Exhibit A
(collectively, the "Second Amended and Restated Revolver Notes"). The aggregate
principal amount of all of the Second Amended and Restated Revolver Notes shall
equal $75,000,000.00. All references in the Loan Agreement and in each of the
other Loan Documents to the "Revolver Notes" or a "Revolver Note" shall mean the
Second Amended and Restated Revolver Notes and each Second Amended and Restated
Revolver Note, as applicable. Neither the execution and delivery of the Second
Amended and Restated Revolver Notes nor this Amendment shall constitute a
novation, release, waiver, satisfaction, accord or accord and satisfaction of
any of the Indebtedness evidenced by the original Revolver Notes or the Amended
and Restated Revolver Notes, which Indebtedness shall be deemed advanced and
outstanding under the Second Amended and Restated Revolver Notes. To evidence
each Lender's increased Pro Rata Share of the Revolver, Schedule B to the Loan
Agreement is hereby deleted and replaced with the Amended Schedule B attached
hereto. All references to Schedule B in the Loan Agreement are hereby replaced
with references to Amended Schedule B.
3. CONTRACT PERIOD. Section 2.1(a) of the Loan Agreement is hereby amended
by deleting "April 8, 2001" in the second line thereof and replacing it with
"December 31, 2000" to the effect that the Contract Period shall end, and all
Outstanding Credit shall be due and payable, on December 31, 2000.
4. USE OF PROCEEDS. Section 2.2 of the Loan Agreement is hereby amended by
replacing it in its entirety with the following:
2.2 Use of Proceeds. (a) Borrower agrees to use Advances under the Revolver
to refinance existing debt to CoreStates and NationsBank, N.A., respectively,
and for working capital and general corporate purposes, provided, however, that
the first $5,000,000 of Advances provided after the Third Amendment, upon
receipt by Borrower, shall be used to make a Permitted Affiliate Loan to Antrum,
which Permitted Affiliate Loan shall be evidenced by the Antrum Note, with
principal payable upon demand and interest payable quarterly, both in US
dollars. Payment of the Antrum Note shall be guaranteed by the Canadian
Guaranty, and payment of the Antrum Note and the Canadian Guaranty shall be
secured by first priority liens and security interests in all personal property
of Antrum and JPM/Canada. Borrower shall cause Antrum to loan $4.5 million to
JPM/Canada, and Borrower shall cause JPM/Canada to pay in full to the McDonald
Family the McDonald Family Earn Out and to obtain return and cancellation of the
McDonald Family Letters of Credit;
(b) Following cancellation of the McDonald Family Letters of Credit,
Advances under the Revolver shall be used solely to fund the types and amounts
of itemized expenditures set forth in the Budget for the periods contemplated
thereby and subject to the terms hereof. The fact that the Budget includes
projections for periods beyond the Contract Period shall not constitute a
commitment by any Lender with respect to anything beyond the Contract Period.
5. INTEREST RATES.
(a) Schedule A to the Loan Agreement is hereby amended by deleting the same
in its entirety and replacing it with "Amended Schedule A" attached to this
Third Amendment. All references to Schedule A in the Loan Agreement are hereby
replaced with references to Amended Schedule A.
(b) Section 3.1 of the Loan Agreement is hereby amended by replacing it in
its entirety with the following:
3.1 Revolver Interest Rate Options. Provided that no Event of Default shall
have occurred, interest on the unpaid principal balance of the Revolver will
accrue from the date of advance until final payment thereof, at a rate or rates
selected by Borrower from one of the two (2) interest rate options set forth
below, subject to the restrictions and in accordance with the procedures set
forth in this Agreement:
(i) the Base Rate; or
(ii) the LIBOR Rate
provided, however, that from and after September 14, 2000, all Advances
bearing interest at the LIBOR Rate shall convert to the Base Rate on the last
day of the Rate Period then in effect, and thereafter, subject to Section 3.3
hereof, all Advances will bear interest at the Base Rate.
(a) Base Rate. From and after September 14, 2000, except as provided above,
all Advances under the Revolver shall accrue interest at the Base Rate.
(b) Reserved.
(c) Certain Provisions Concerning Revolver Interest Rates. Borrower
understands and agrees that: (i) subject to the provisions of this Agreement,
the interest rates set forth in Section 3.1 above may apply simultaneously to
different portions of the outstanding principal of the Revolver; (ii) the LIBOR
Rate may apply simultaneously to various portions of the outstanding principal
of the Revolver for various Rate Periods; (iii) the LIBOR Rate applicable to any
portion of the outstanding principal of the Revolver may be different from the
LIBOR Rate applicable to any other portion of the outstanding principal of the
Revolver; (iv) Advances under the Revolver accruing interest at the LIBOR Rate
must be in increments of at least One Million Dollars ($1,000,000.00); and (v)
no more than six (6) Advances under the Revolver accruing interest at the Rate
may be outstanding at any one time.
(d) LIBOR Unlawful for a Lender. In the event that, as a result of any
changes in applicable law or regulation or the interpretation thereof, it
becomes unlawful for a Lender to maintain or fund any Loans under the Revolver
at the LIBOR Rate, then such Lender shall immediately notify Agent who shall
immediately notify the other Lenders and Borrower thereof and such Lender's
obligations to make, convert to, or maintain any Loans under the Revolver at the
LIBOR Rate shall be suspended until such time as such Lender may again cause the
LIBOR Rate to be applicable to its share of any Loans under the Revolver and,
until such time, such Lender's share of Loans under the Revolver subject to the
LIBOR Rate shall accrue interest at the Base Rate. Promptly after becoming aware
that it is no longer unlawful for such Lender to maintain or fund Loans at the
LIBOR Rate, such Lender shall notify Agent who will notify Borrower and the
other Lenders thereof and such suspension shall cease to exist.
(e) Base Rate Option Fall Back. After expiration of any Rate Period, any
principal portion of the Revolver corresponding to such Rate Period which has
not been converted or renewed in accordance with the terms of this Agreement
shall accrue interest automatically at the Base Rate from the date of expiration
of such Rate Period until paid in full.
(f) Reserved.
6. SECURITY; COLLECTION OF RECEIVABLES AND PROCEEDS OF COLLATERAL. Sections
5.1 and 5.2 of the Loan Agreement are hereby amended by replacing them in their
entirety with the following:
5.1 Security Agreements and Mortgages.
(a) Personal Property. As security for the full and timely payment and
performance of all Lender Indebtedness, each Obligor shall grant to Agent, for
the benefit of the Lenders and the Issuing Bank, a security interest in all of
such Obligor's personal property, whether now owned or hereafter acquired, as
evidenced by those certain security and other agreements executed of even date
by Borrower and Guarantors in favor of Agent. Such security and other
agreements, as they may be amended from time to time, together with any and all
other security and/or other agreements hereafter executed by any Obligor in
favor of Agent as security for any of the Lender Indebtedness, are referred to
herein collectively as the "Security Agreements." Without limiting the
generality of the foregoing, the Borrower shall, or shall cause their
subsidiaries, to do the following:
(i) As security for the full and timely payment and performance of the
Antrum Note, Borrower shall cause Antrum to execute and deliver the Antrum GSA,
granting to Borrower a security interest in all of Antrum's personal property,
whether now owned or hereafter acquired, and the Borrower shall perfect the same
in accordance with applicable law. In addition, Borrower shall cause JPM/Canada
to execute and deliver the Canadian Guaranty and the Canadian Pledge;
(ii) As security for the full and timely payment and performance of the
Pantera Note, Borrower shall cause Pantera to grant to Borrower a security
interest in all of Pantera's personal property, whether now owned or hereafter
acquired ("Pantera Security Agreement"), and the Borrower shall perfect the same
in accordance with applicable law. In addition, Borrower shall cause JPM/Mexico
to provide the Mexican Guaranty, and shall cause the obligations of JPM/Mexico
under the Mexican Guaranty and under the JPM/Mexican Note to be secured by a
first priority security interest in all the personal property of JPM/Mexico (the
"Mexican Pledge Agreement"), including, without limitation, a pledge of all of
the issued and outstanding shares or other equity interests of JPM/Mexico in
Pantera ("Pantera Stock");
(iii) Borrower and Obligors shall deliver to Agent for the benefit of the
Lender those documents which are necessary to evidence a security interest of
the Agent for the benefit of the Lenders and the Issuing Bank in the U.S. patent
and trademark office on all patents and trademarks of the Obligors;
(iv) Borrower, Pantera, JPM/Mexico, JPM/Canada and Antrum shall use their
best efforts to provide Agent, for the benefit of the Lenders and the Issuing
Bank, with landlord waivers in from and substance acceptable to Agent on all
leased real estate, including HUB Locations.
(v) Borrower and all Domestic Subsidiaries shall deliver to the Agent, for
the benefit of Lenders, agreements among such parties, the Agent, and each
financial institution at which such Obligors maintain deposit accounts, in form
and substance satisfactory to Agent ("Account Control Agreements"), pursuant to
which such depository institution acknowledges the security interest of the
Agent for the benefit of the Lenders and the Issuing Bank in all such accounts,
and agrees to take instruction with respect to such accounts solely from the
Agent, upon receipt of a Notice of Default.
(b) Real Property. As security for the full and timely payment and
performance of all Lender Indebtedness, each Obligor shall grant to Agent, for
the benefit of the Lenders and the Issuing Bank, a mortgage, deed of trust or
other evidence of lien and security interest in all of such Obligor's real
property, whether now owned or hereafter acquired, as evidenced by those certain
mortgages or deeds of trust executed contemporaneously by Borrower and
Guarantors in favor of Agent. Such mortgages, deeds of trust and other
agreements, as they may be amended from time to time, are referred to herein
collectively as the "Mortgages." Without limiting the generality of the
foregoing, the Obligors shall grant or otherwise provide to Agent for the
benefit of the Lenders and the Issuing Bank the following:
(i) Borrower shall grant to Agent for the benefit of the Lenders and the
Issuing Bank, a first priority mortgage in the Winsboro Property.
(ii) Borrower shall grant to Agent, for the benefit of Lenders, with best
available mortgage on all other real estate owned;
(iii) Antrum and JPM/Canada shall grant to Borrower, to secure repayment of
the Antrum Note and the Canadian Guaranty respectively, the best available
mortgage on all owned real estate, which mortgages shall be pledged by Borrower
to Agent for the benefit of the Lenders and the Issuing Bank.
(iv) Pantera and JPM/Mexico shall grant to Borrower, to secure repayment of
the Pantera Note, the Mexican Guaranty and the JPM/Mexico Note respectively, the
best available mortgage on all owned real estate, which mortgages shall be
pledged by Borrower to Agent for the benefit of the Lenders and the Issuing
Bank.
5.2 Pledge Agreements. As further security for the Lender Indebtedness,
each Obligor shall pledge and assign to Agent, or cause to be pledged and
assigned to Agent, for the benefit of the Lenders and the Issuing Bank (i) 66%
of the issued and outstanding certificated shares or other certificated equity
interests of Obligors in each Subsidiary which is a "controlled foreign
corporation" under the provisions of Section 957 of the Code, (ii) 100% of the
issued and outstanding certificated shares or other certificated equity
interests of Obligor in each other Subsidiary (all items described in
subparagraphs (i) and (ii) collectively referred to as the "Equity Collateral"),
and (iii) all notes or other written evidence of intercompany indebtedness owing
to any Obligor, including without limitation, the Antrum Note, the Pantera Note
and the JPM/Mexico Note (collectively the "Notes") and all security agreements,
mortgages, guaranties and other documents creating and perfecting a security
interest or lien to secure the repayment of the Notes (collectively the "Chattel
Paper" and together with the Notes, the "Debt Collateral"). Such pledge and
assignment of Equity Collateral shall include all dividends, distributions and
other proceeds with respect to such shares or equity interests, and such pledge
and assignment of Debt Collateral shall include security agreements and
mortgages securing repayment of the Notes, all guaranties for the Notes, and all
payments of principal and interest thereon, all pursuant to Amended and Restated
Pledge Agreements in form and substance acceptable to the Agent (collectively
the "Amended and Restated Pledge Agreements").
7. GENERAL COVENANTS. The following additional covenants are hereby added
to Article 7 of the Loan Agreement at the respective numerical locations
indicated:
7.26 Financial Consultant. Borrower shall, on or before August 31, 2000,
retain a financial consultant acceptable to Agent and Required Lenders.
7.27 Negative Pledge. Borrower shall neither cause nor permit any Foreign
Subsidiary to grant or permit to exist any Lien on any assets of such Foreign
Subsidiary other than such Liens as may be granted to Agent for the benefit of
Lenders and the Issuing Bank.
7.28 Borrower to Own All Inventory and Accounts for Goods Sold in the
United States. To the extent it can be accomplished without tax consequences
adverse to Borrower and its Subsidiaries, Borrower shall use its best efforts to
cause Antrum, Pantera and all other Foreign Subsidiaries to transfer to Borrower
in consideration for appropriate intercompany debits and credits, all finished
goods inventory shipped to the United States for delivery to customers in the
United States, including finished goods inventory at HUB Locations, such that
all finished goods inventory in the United States shall be owned by, and
reflected on the books of, the Borrower. Furthermore, Borrower shall use its
best efforts to cause all future sales of finished goods inventory to United
States based customers to be invoiced by, and to be reflected as accounts
receivable on, the books and records of Borrower to the extent it can do so
without it or its Subsidiaries sustaining adverse tax consequences.
7.29 Lender Consultants. Upon the request of the Required Lenders, the
Agent may retain, at the expense of the Borrower, a financial consultant for the
Lenders, to review and monitor the operations, historical financial statements,
projections, Budget, Business Plan of the Borrower, work product of the
Borrower's Financial Consultant, and such other aspects of the Borrower's
business as may be requested by the Lenders.
7.30 No Prepayment of Intercompany Notes. Prior to indefeasible payment in
full of the Lender Indebtedness, Borrower shall neither make demand on, nor
permit repurchase, redemption, or prepayment of, the Antrum Note, the Pantera
Note, and/or the JPM/Mexico Note.
7.31 Performance in Accord with Budget. From and after September 14, 2000,
the financial performance of Borrower and its Subsidiaries as reflected in the
Monthly Reports provided to the Agent and the Lenders pursuant to Section 9.3(b)
of this Loan Agreement shall not be materially adverse to the income or cash
flow projected by the Budget for the comparable period.
8. FINANCIAL COVENANTS. Article 8 of the Loan Agreement is hereby amended
by deleting the same in its entirety:
9. WAIVER OF EXISTING DEFAULTS. To the extent Borrower was, prior to the
Effective Date of this Third Amendment, in default of the financial covenants
set forth in Sections 8.1, 8.2 or 8.3 for the fiscal quarter ending June 30,
2000, such defaults are hereby waived by the Lenders.
10. COMMUNICATIONS AND NOTICES. Article 15 of the Loan Agreement is amended
by replacing the distribution list in Section 15.1 in its entirety with the
following:
To Borrower: The JPM Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Chairman & CEO
Telecopier: (000) 000-0000
With copies to: The JPM Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Exec. Vice President
and General Counsel
Telecopier: (000) 000-0000
To Agent: First Union National Bank
Xxxxxxx Building, 4th Floor
0 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxx
Telecopier: (000) 000-0000
With copies to: Xxxxxxxxxx Xxxxxxxx LLP
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: J. Xxxxxxx Xxxx, Esquire
Telecopy Number: (000) 000-0000
To Mellon: 0000 Xxxxxx Xxxxxx
Xxxx 000-0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
With copies to: Klett, Rooney, Xxxxxx & Xxxxxxxxx
Two Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
Telecopy Number: (000) 000-0000
To Bank of Bank of America
America: 000 X. Xxxxx Xxxxxx
XX 1-001-13-26
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
To PNC: PNC Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telecopy Number: (000) 000-0000
11. AMENDMENT FEE. Borrower shall pay to Agent for the pro rata benefit of
the consenting Lenders the following Amendment Fee: (i) upon execution of this
Third Amendment 0.25% of the Maximum Amount, as amended, less a credit of up to
$100,000 for the Waiver Fee actually paid by or on behalf of the Borrower for
the August 18, 2000 Temporary Waiver ("Temporary Waiver"), which fee is fully
earned by the consenting Lenders and is non-refundable, and (ii) at the end of
the Contract Period, $1,000,000 provided, however, that if the Outstanding
Credit is paid in full on or before November 30, 2000, such fee shall be reduced
to $500,000, but in either event such fee is fully earned by the consenting
Lenders and is non-refundable.
12. COSTS AND EXPENSES. Expressly in addition to the Amendment Fee payable
under Paragraph 11 above, Borrower shall pay all costs and expenses in
connection with the review, negotiation, documentation and closing of the
Temporary Waiver and this Third Amendment and the consummation of the
transactions contemplated by both, including, without limitation, fees,
disbursements and expenses of counsel (outside or internal) retained by Agent
and all Lenders, and all fees related to filings, recording of documents and
searches.
13. ADDITIONAL DOCUMENTS. Borrower covenants and agrees to execute and
deliver, and to cause to be executed and delivered to Agent any and all other
documents, agreements, corporate resolutions, certificates and opinions as Bank
shall request in connection with the execution and delivery of this Third
Amendment or any other documents in connection herewith.
14. REFERENCES. All references in the Loan Documents to the "Loan
Agreement" shall mean the Loan Agreement as amended by the First Amendment, the
Second Amendment and this Third Amendment. All references in the Loan Agreement
and the other Loan Documents to the "Loan Documents" shall include, without
limitation, the First Amendment, the Second Amendment and this Third Amendment
and any and all other instruments or agreements executed in connection with or
pursuant thereto.
15. EFFECTIVE DATE. This Third Amendment shall not be effective until the
date (the "Effective Date") on which the Borrower has satisfied (or the Agent
and the Lenders have waived in writing) each of the following conditions
precedent:
(a) Agent shall have received this Third Amendment duly executed by all
parties hereto, together with the duly executed Second Amended and Restated
Revolver Notes in the form annexed hereto as Exhibit A and the duly executed
Third Amended Acknowledgment and Consent in the form annexed hereto as Exhibit
B;
(b) Agent shall have received possession of the Antrum Note, the Antrum
GSA, the Canadian Guaranty, the Canadian Pledge, the Antrum Stock, the Pantera
Note and the JPM/Mexico Note, together with stock powers and powers of attorney
in form and substance acceptable to Agent;
(c) Agent shall have received a certificate of the Secretary or an
Assistant Secretary of Borrower and each Guarantor, in form and substance
satisfactory to Agent, with respect to (i) the certificate of incorporation and
by-laws of Borrower and each Guarantor, (ii) the resolutions authorizing the
execution, delivery and performance of this Amendment and (iii) the incumbency
of officers of Borrower and each Guarantor authorized to execute and deliver
this Amendment;
(d) Agent shall have received a certificate of the Secretary or an
Assistant Secretary of JPM/Canada and Antrum, in form and substance satisfactory
to Agent, with respect to (i) the certificate of incorporation and by-laws of
JPM/Canada and Antrum, (ii) the resolutions authorizing the execution, delivery
and performance of the Antrum Note, the Antrum GSA, the Canadian Guaranty, the
Canadian Pledge Agreement (collectively, the "Canada Loan Documents") and (iii)
the incumbency of officers of JPM/Canada and Antrum authorized to execute and
deliver the Canadian Documents;
(e) Agent shall have received a certificate of good standing, issued as of
a recent date, with respect to Borrower, each Guarantor, Antrum, and JPM/Canada
from its jurisdiction of incorporation;
(f) Agent shall have received payment of the presently payable portion of
Amendment Fee, as described in Paragraph 11 of this Third Amendment, for the
ratable benefit of the Lenders consenting to this Third Amendment, to be
distributed by Agent to the consenting Lenders in respect of the Lender's
respective Pro Rata Percentage of the Maximum Amount;
(g) Agent shall have received an opinion of Borrower's counsel, in form and
substance satisfactory to Agent and its counsel, as to the due authorization,
validity and enforceability of the Third Amendment, the Second Amended and
Restated Revolver Notes, the Third Amended Acknowledgement and Consent, the
Amended and Restated Pledge Agreements, and the Power of Attorney;
(h) Agent shall have received an opinion of Borrower's Canadian counsel, in
form and substance satisfactory to Agent and its counsel, as to the due
authorization, validity and enforceability of the Antrum Note, the Antrum GSA,
the Canadian Guaranty and the Canadian Pledge;
(i) Agent shall have received payment of all fees and expenses of counsel
to Agent and each Lender payable pursuant to Paragraph 12 of this Third
Amendment;
(j) Agent shall have received constructive possession of the XxXxxxxx
Family Letters of Credit for cancellation; and
(k) Agent shall have received such other documents, certificates,
instruments and opinions as Agent may reasonably request.
16. POST CLOSING ITEMS. On or before October 16, 2000, Agent shall have
received:
(a) The best available Mortgage on all owned real estate of Borrower;
(b) The best available Mortgage on all owned real estate of Antrum, duly
assigned to Agent for benefit of the Lenders and the Issuing Bank;
(c) The best available Mortgage on all owned real estate of Pantera, duly
assigned to agent for the benefit of the Lenders and the Issuing Bank.
(d) The Pantera Security Agreement, the Mexican Pledge Agreement, the
Pantera Stock, together with stock powers and powers of attorney in form and
substance acceptable to Agent.
(e) Landlord waivers in form and substance acceptable to Agent from leased
facilities housing inventory of Borrower in the United States, Canada and
Mexico, except for those landlords from whom such waivers could not be obtained
despite the best efforts of Borrower and its Subsidiaries.
(f) Executed documents in suitable form for filing in the US Patent and
Trademark Office to evidence the Agent's security interest in the Obligor's
patents and trademarks.
Failure to provide any or all of these post-closing items by the specified
deadline shall constitute an Event of Default under Section 13 of the Loan
Agreement.
17. RELEASE AND COVENANT NOT TO XXX. Borrower hereby releases and forever
discharges the Agent, Lenders and all of their respective officers, directors,
employees and agents from any and all actions, causes of action, debts, dues,
claims, demands, liabilities and obligations of every kind and nature, both in
law and in equity, known or unknown, now existing, which might be asserted
against Agent or Lenders arising out of or relating to the Loan Agreement and
the other Loan Documents, the indebtedness under the Amended and Restated
Revolver Notes, the Temporary Waiver, and the lending, deposit and borrowing
relationships between Borrower and Agent and Lenders, including the
administration, collateralization and funding thereof. Borrower agrees never to
institute or cause to be instituted any suit or proceeding of any kind against
Agent, Lenders or their respective officers, directors, employees or agents on
account of any claim, known or unknown, now existing, arising from or relating
to the Loan Agreement and the other Loan Documents, the indebtedness under the
Amended and Restated Revolver Notes, the Temporary Waiver or the lending,
deposit and borrowing relationships between Borrower and Lenders.
18. FURTHER AGREEMENTS AND REPRESENTATIONS. Borrower does hereby:
(a) ratify, confirm and acknowledge that the Loan Agreement, as amended
hereby, and the other Loan Documents are valid, binding and in full force and
effect;
(b) covenant and agree to perform all obligations of Borrower contained
herein, in the Second Amended and Restated Revolver Notes, under the Loan
Agreement, as amended, and the other Loan Documents;
(c) acknowledge and agree that Borrower has no defense, set-off,
counterclaim or challenge against the payment of any sums owing under the Loan
Documents or the enforcement of any of the terms of the Loan Agreement, as
amended, the Second Amended and Restated Revolver Notes or the other Loan
Documents;
(d) acknowledge and agree that all representations and warranties of
Borrower contained in the Loan Agreement and/or the other Loan Documents, as
amended, are true, accurate and correct on and as of the date hereof as if made
on and as of the date hereof, except as previously disclosed to the Agent in
writing with respect to Section 6.6 of the Loan Agreement;
(e) represent and warrant that no Event of Default (as defined in the Loan
Agreement or any of the other Loan Documents) or event which with the giving of
notice or passage of time or both would constitute such an Event of Default
exists, except those expressly waived in Paragraph 9 above, and all information
described in the recitals to this Third Amendment is true, accurate and
complete;
(f) acknowledge and agree that nothing contained herein and no actions
taken pursuant to the terms hereof is intended to constitute a novation of the
Loan Agreement or any of the other Loan Documents, and does not constitute a
release, termination or waiver (except as expressly provided in Paragraph 9
above) of any existing Event of Default or of any liens, security interests,
suretyship obligations, pledges, rights or remedies granted to Agent and/or
Lenders therein, which liens, security interests, suretyship obligations,
pledges, rights and remedies are hereby expressly ratified, confirmed, extended
and continued as security for all Lender Indebtedness, including, without
limitation, all obligations of Borrower to Agent and Lenders under the Loan
Agreement, as amended by the First Amendment, the Second Amendment and this
Third Amendment, the Second Amended and Restated Revolver Notes and the other
Loan Documents; and
(g) acknowledge and agree that Borrower's failure to comply with or perform
any of its covenants, agreements or obligations contained in this Third
Amendment shall constitute an Event of Default under the Loan Agreement and each
of the Loan Documents.
19. INCONSISTENCIES. To the extent of any inconsistency between the terms,
conditions and provisions of this Third Amendment and the terms, conditions and
provisions of the Loan Agreement or the other Loan Documents, the terms,
conditions and provisions of this Third Amendment shall prevail. All terms,
conditions and provisions of the Loan Agreement and the other Loan Documents not
inconsistent herewith shall remain in full force and effect and are hereby
ratified and confirmed by Borrower.
20. NO WAIVER/COUNTERPARTS. Except as expressly set forth herein, nothing
contained herein and no actions taken pursuant to the terms hereof are intended
to, nor shall they constitute a waiver by Agent or Lenders of, any rights or
remedies available to any of them at law or in equity or as provided in the Loan
Agreement or the other Loan Documents. This Third Amendment may be executed in
multiple counterparts.
21. BINDING EFFECT. This Third Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
22. GOVERNING LAW. This Third Amendment shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
23. HEADINGS. The headings of the sections of this Third Amendment are
inserted for convenience only and shall not be deemed to constitute a part of
this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first above written.
THE JPM COMPANY
By:
Name/Title: Xxxx X. Xxxxxxx
Chief Executive Officer
AGENT:
FIRST UNION NATIONAL BANK, as Agent
By:
Name
Title:
ISSUING BANK:
FIRST UNION NATIONAL BANK, as Issuing Bank
By:
Name
Title:
LENDERS:
FIRST UNION NATIONAL BANK, as Lender
By:
Name
Title:
MELLON BANK, N.A.
By:
Name
Title:
BANK OF AMERICA, N.A., successor by merger to
NATIONSBANK, N.A.
By:
Name
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
Name
Title:
AMENDED SCHEDULE A
Borrower's Funded Applicable Base Rate Applicable LIBOR Rate Usage Fee
Debt/EBITDA* Margin Margin
<2.0 to 1.0 3.0% 1.125% 0.250%
>2.0 to 1.0 3.0% 1.375% 0.250%
but <2.5 to 1.0
>2.5 to 1.0 3.0% 2.125% 0.375%
but <3.0 to 1.0
>3.0 to 1.0 3.0% 2.375% 0.375%
but <3.25 to 1.0
>3.25 to 1.0 3.0% 2.750% 0.500%
but <3.5 to 1.0
>3.5 to 1.0 3.0% 3.250% 0.500%
but <4.0 to 1.0
>4.0 to 1.0 3.0% 3.500% 0.500%
but <4.5 to 1.0
>4.5 to 1.0 3.0% 3.750% 0.500%
*Funded Debt/EBITDA means, as of the end of each fiscal quarter of Borrower and
determined for the 12 month period then ended, (a) total funded debt of Borrower
and its Subsidiaries for such period (Indebtedness for borrowed money plus
Capitalized Lease Obligations), divided by (b) EBITDA for such period; all
calculated on a Consolidated Basis and in accordance with GAAP.
AMENDED SCHEDULE B
LENDER PRO RATA PERCENTAGE PRO RATA SHARE
First Union National Bank 37.5% $28,125,000
Mellon Bank, N.A. 25.0% $18,750,000
PNC Bank, National Association 16.67% $12,500,000
Bank of America 20.83% $15,625,000
TOTAL 100% $75,000,000
EXHIBIT A
SECOND AMENDED AND RESTATED
REVOLVER NOTE
EXHIBIT B
THIRD AMENDED
ACKNOWLEDGMENT AND CONSENT
EXHIBIT C
BUDGET
