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EXHIBIT 10.19
FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
DATED AS OF SEPTEMBER 30, 1996
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"Fourth Amendment") effective as of the 22nd day of June, 1999, by and among
MAXCO, INC., a Michigan Corporation ("Borrower") and COMERICA BANK, a Michigan
banking corporation ("Bank").
W I T N E S S E T H
WHEREAS, Borrower and Bank entered into a certain Amended and Restated
Loan Agreement dated September 30, 1996, as amended by First Amendment thereto
dated as of August 1, 1997, as further amended by Second Amendment thereto dated
as of June 24, 1998 and as further amended by Third Amendment thereto dated as
of September 24, 1998 (the "Agreement"); and
WHEREAS, Borrower and Bank now desire to amend the Agreement to provide
(i) for the securitization of Revolving Loans, (ii) for the modification of
certain of the covenants and restrictions set forth in the Agreement, and (iii)
for the waiver of those covenants for periods ending March 31, 1999 and earlier.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower and the Bank hereby agree as follows:
1. In Sub-Section 1.1 of Section 1 of the Agreement, the following
definitions are hereby deleted in their entirety and replaced by the following
or added entirely:
"Commitment Amount" shall mean $15,000,000 (or such lesser amount to
which the Commitment Amount may be reduced by the Borrower from time
to time under Section 2.8.1 of this Agreement).
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"Collateral" shall mean the properties and rights described
in the Collateral Documents and each and every mortgage, security
agreement, pledge, assignment and other security or collateral
agreement which has been, or will hereafter be, executed by Borrower or
any of the Guarantors to or for the benefit of the Bank; all items now
or hereafter deposited in any account of Borrower or any of the
Guarantors with the Bank and all proceeds of such items (cash or
otherwise); and all account balances of Borrower or any of the
Guarantors now or hereafter with the Bank.
"Collateral Documents" shall mean the Security Agreements, the
Pledge Agreements, the Mortgages, and the Financing Statements.
"Investment Entity" shall mean any corporation, partnership,
limited liability company or other entity in which an ownership
interest is owned directly, or indirectly through one or more
intermediaries, by the Borrower, other than a Subsidiary.
"Pledge Agreements" shall mean pledge agreement in such form
as shall be required by the Bank pursuant to this Agreement, which the
Borrower and the Guarantors have previously or in the future will
pledge, to the Bank, the Securities.
"Securities" shall mean (i) all of the issued and outstanding
capital stock of the Subsidiaries and (ii) all of the shares of capital
stock or other ownership interest owned by the Borrower or any
Subsidiary in an Investment Entity.
"Security Agreements" shall mean security agreements in such
form as shall be required by the Bank pursuant to this Agreement, which
the Borrower, Ersco and the Guarantors have previously or in the future
will grant, to the Bank, security interests in the Collateral and/or
the Ersco Collateral, as applicable, now owned or hereafter acquired,
together with all replacements thereof, substitutions therefor and all
proceeds thereof, for the purpose of securing Revolving Loans, Term
Loans and/or the Revolving Ersco Acquisition Loans.
"Security Interests" shall mean first priority liens in the
Collateral as contemplated by the Collateral Documents, except as to
the Collateral in the possession of Guarantor, Atmosphere Annealing,
Inc., in which the Bank shall take a second priority lien.
2. There is hereby added a new Sub-Section 3.3 to Section 3 of
the Agreement which shall read as follows:
3.3 Revolving Loans. To secure full and timely performance of
the Borrower's covenants set out in this Agreement relating to the
Revolving Loans and to secure the repayment of the Revolving Credit
Note the Borrower agrees to grant
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and assign, and to cause the Guarantors to grant and assign security
and/or pledged interests in the Collateral pursuant to the Collateral
Documents and other instruments and agreements satisfactory to the
Bank and, in addition, the Borrower recognizes and agrees that the
Revolving Credit Note and the Revolving Loan are secured by all
security interests, mortgages, pledges, and encumbrances previously or
hereafter granted to the Bank by the Borrower.
3. Section 5.1 of Section 5 is hereby deleted in its entirety and
is replaced by the following:
5.1 Corporate Existence and Power. (a) The Borrower is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Michigan, (b) each of the Subsidiaries is a
corporation duly organized, validly existing and in good standing under
the law of its state of incorporation, (c) the Borrower and each of the
Subsidiaries have the corporate power and authority to own their
respective properties and assets and to carry out their respective
businesses as now being conducted and are qualified to do business and
in good standing in every jurisdiction wherein such qualification is
necessary, (d) the Borrower has the corporate power and authority to
execute, deliver and perform this Agreement, to borrow money in
accordance with its terms, to execute and deliver the Notes and other
documents contemplated hereby, to grant to the Bank the Security
Interests and the Purchase Money Security Interests in the Collateral
as contemplated by the Collateral Documents and to do any and all other
things required of it hereunder, (e) each of the Guarantors has the
corporate power and authority to execute, deliver and perform the
Guaranty, the Acknowledgement and Consent and the other documents
contemplated hereby, to grant to the Bank liens, mortgages and security
interests in the Collateral, and to do any and all other things
required of it hereunder, and (f) except as disclosed in Schedule 5.1,
neither the Borrower nor any Subsidiary conducts business under any
assumed or trade name.
4. Schedule 5.12 annexed to the Agreement and referenced in
Section 5.12 of Section 5 of the Agreement is replaced in its entirety
by the new Schedule 5.12 which is attached hereto and is by this
reference made a part hereof.
5. Sub-Section 6.6 of Section 6 is hereby deleted in its
entirety and is replaced by the following:
6.6 Maintain Consolidated Funded Debt to EBITDA. On a
consolidated basis, maintain the ratio of Consolidated Funded Debt to
earnings before interest, taxes, depreciation and amortization
(determined on a rolling four quarters basis) ("EBITDA") of not more
than 5.50 to 1.0.
6. Sub-Section 6.12 of Section 6 is hereby deleted in its
entirety and is replaced by the following:
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6.12 Maintain Debt to Tangible Net Worth. On a consolidated
and proforma (including acquisitions) basis, maintain the ratio of Debt
to Tangible Net Worth of not more than 2.00 to 1.0.
7. There is hereby added a new Sub-Section 6.13 to Section 63 of
the Agreement which shall read as follows
6.13 Waivers. In accordance with the provisions of Section 9.3
of the Agreement, the Bank hereby specifically waives (i) the
affirmative covenant set forth in Section 6.6 of the Agreement only to
the extent of Borrower's failure to comply with the Consolidated Funded
Debt to EBITDA ratio as of March 31, 1999 and all prior times, and (ii)
the affirmative covenant set forth in Section 6.12 of the Agreement
only to the extent of Borrower's failure to comply with the Debt to
Tangible Net Worth ratio as of March 31, 1999 and all prior times.
Notwithstanding the waivers set forth herein, Borrower must, as of all
other applicable times of determination under the Agreement, comply
with each of terms and conditions of the Agreement, including but not
limited to the affirmative covenants of Section 6 of the Agreement. As
set forth in Section 9.3 of the Agreement these waivers are expressly
limited to the extent specified and shall not operate as a waiver of
any other provision of the Agreement or any Default or Event of Default
hereunder.
8. Sub-Section 7.7 of Section 7 is hereby deleted in its entirety
and is replaced by the following:
7.7 Guarantee Obligations. Guarantee or otherwise, directly or
indirectly, in any way be or become responsible for obligations of any
other Person, whether by agreement to purchase the indebtedness of any
other Person, agreement for the furnishing of funds to any other Person
through the furnishing of goods, supplies or services, by way of stock
purchase, capital contribution, advance or loan, for the purpose of
paying or discharging (or causing the payment or discharge of) the
indebtedness of any other Person, or otherwise, except for (i) the
endorsement of negotiable instruments by the Borrower or the
Subsidiaries in the ordinary course of business for deposit or
collection, (ii) the guaranty by the Borrower of any and all
obligations of any Subsidiary wholly-owned by Borrower, (iii) the
guaranties by the Borrower listed on Schedule 5.12 of this Agreement;
provided that the aggregate dollar amount of all guarantees expressly
permitted by (ii) and (iii) of this Sub-Section 7.7 shall not, at any
time, exceed $45 Million.
9. Sub-Section 7.10 of Section 7 is hereby deleted in its
entirety and is replaced by the following:
7.10 Acquire Securities. Purchase or hold beneficially any
stock or other securities of, or make any investment or acquire any
interest whatsoever in, any other Person, except for the common stock
of or ownership interests in the
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Guarantors, Medar Subordinated Debt Securities, Provant, Inc.,
Xxxxxxxx Oil Co., L.L.C., AMI Energy, Inc., L/M Associates II, L.L.C.,
Blasen Xxxxxx Asset Management Company, Xxxxx, Ltd. (France),
Foresight Solutions, Inc., LandEquities Corporation, Xxxxxx Builders,
Inc., Midstate Industrials, Inc. and the Phoenix Financial Group,
Ltd., in each case limited to the interest owned by the Borrower on
the date of this Fourth Amendment to the Agreement, and except for
certificates of deposit with maturities of one year or less of United
States commercial banks with capital, surplus and undivided profits in
excess of $100,000,000, direct obligations of the United States
Government maturing within one year from the date of acquisition
thereof, and high grade commercial paper and high grade fixed-income
securities (e.g., corporate bonds).
10. Except as specifically modified hereby, the terms and
conditions of the Agreement and the Notes remain in full force and
effect and the undersigned hereby ratify and agrees to be bound by the
terms of the Agreement as hereby amended.
11. Neither the extension of this Fourth Amendment by the Bank,
nor any other act or omission by the Bank in connection herewith,
shall be deemed a waiver by the Bank of any default under the
Agreement.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this Fourth
Amendment to be executed by their duly authorized officers as of the day and
year first written above.
MAXCO, INC.
By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Its Vice President
COMERICA BANK
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Its Vice President
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The Undersigned Guarantors hereby acknowledge and consent to the above
Fourth Amendment.
Ersco Corporation Pak-Sak Industries, Inc.
By /s/ Xxxxxxx Xxxxxxx By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Its Treasurer Its Treasurer
Wisconsin Wire & Steel, Inc. Atmosphere Annealing, Inc.
By /s/ Xxxxxxx Xxxxxxx By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Its Treasurer Its Treasurer
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