EXHIBIT 10.8
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated as of
June 28, 2001, is made by and among ELGIN NATIONAL INDUSTRIES, INC., a Delaware
corporation (the "Borrower"), the Guarantors party to the Credit Agreement (as
defined below), the Banks party to the Credit Agreement, and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as agent for the Banks (the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit Agreement,
dated as of September 24, 1993, as amended and restated as of January 18, 2001,
and as further amended as of March 1, 2001, by and among the Borrower, the
Guarantors, the Banks, and the Agent (the "Credit Agreement") and desire to
amend the terms thereof as set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions.
Defined terms used herein unless otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement as amended by this Amendment.
2. Amendment of Credit Agreement.
(a) Section 1.1 of the Credit Agreement [Certain Definitions] is hereby
amended by inserting the following new definitions, in appropriate
alphabetical order:
Best Metal Finishing, Inc. shall mean Best Metal Finishing, Inc., a
corporation organized and existing under the laws of the state of Delaware
and a Subsidiary of the Borrower.
Best Metal Finishing, Inc. Capital Expenditures shall mean actual Capital
Expenditure Payments made by or on behalf of Best Metal Finishing, Inc. in
the fiscal year 2001 or 2002, which payments shall not exceed in the
aggregate $4,400,000 during the period consisting of the fiscal years 2001
and 2002.
Capital Expenditure Payments shall mean payments, under usual and customary
terms and in the ordinary course of business, on account of the purchase or
lease
of any assets which if purchased would constitute fixed assets or
which if leased would constitute a capitalized lease.
Xxxxxx Debt shall have the meaning set forth in Section 8.2.1.
Xxxxxx Documents shall have the meaning set forth in Section 8.2.21.
Xxxxxx Guaranty shall have the meaning set forth in Section 8.2.3.
Xxxxxx Loan Agreement shall have the meaning set forth in Section
8.2.1.
Xxxxxx Mortgage shall have the meaning set forth in Section 8.2.2.
Xxxxxx Property shall mean the real property, together with any
improvements thereon, owned by Best Metal Finishing, Inc. comprised of
approximately 10 acres and situated in Xxxxxx County, Indiana.
(b) In Section 1.1 of the Credit Agreement [Certain Definitions], the
following definitions are hereby amended and restated in their
entirety to read as follows:
Annual Consolidated EBITDA means Consolidated EBITDA calculated as of
the end of each fiscal quarter for the four quarters then ended. For
purposes of determining Annual Consolidated EBITDA as of the fiscal
quarters ending December 31, 2000, March 31, 2001, June 30, 2001 and
September 30, 2001, Annual Consolidated EBITDA shall be deemed to be
the following:
(A) for the fiscal quarter ended December 31, 2000, Annual
Consolidated EBITDA shall be Consolidated EBITDA as of December
31, 2000 for the four quarters then ended, plus $3,180,000, plus
Actual EBITDA of Xxxxxx for the fiscal quarter ended December 31,
2000;
(B) for the fiscal quarter ended March 31, 2001, Annual Consolidated
EBITDA shall be Consolidated EBITDA as of March 31, 2001 for the
four quarters then ended, plus $2,120,000, plus Actual EBITDA of
Xxxxxx for the fiscal quarter ended December 31, 2000;
(C) for the fiscal quarter ended June 30, 2001, Annual Consolidated
EBITDA shall be Consolidated EBITDA as of June 30, 2001 for the
four quarters then ended, plus $1,060,000, plus Actual EBITDA of
Xxxxxx for the fiscal quarter ended December 31, 2000;
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(D) for the fiscal quarter ended September 30, 2001, Annual
Consolidated EBITDA shall be Consolidated EBITDA as of September
30, 2001 for the four quarters then ended, plus Actual EBITDA of
Xxxxxx for the fiscal quarter ended December 31, 2000; and
(E) for the fiscal quarter ended December 31, 2001 and for each
fiscal quarter thereafter, Annual Consolidated EBITDA shall be
Consolidated EBITDA calculated as of the end of each such fiscal
quarter for the four quarters then ended.
Excess Cash Flow shall be computed as of the close of each fiscal year
by taking the difference between (a) Consolidated EBITDA for such
fiscal year and (b) the sum of Fixed Charges for such fiscal year
plus, for the fiscal years 2001 and 2002 only (and only to the extent
not previously deducted from a prior year Excess Cash Flow
calculation), Best Metal Finishing, Inc. Capital Expenditures for such
fiscal year , provided however, that in the event the computation for
any fiscal year of the difference between the amounts of (a) and (b)
does not exceed $200,000, then for such fiscal year, the "Excess Cash
Flow" shall be deemed to be $0 and no Mandatory Prepayment of Excess
Cash Flow shall be payable for such fiscal year under Section 5.5.1.
It is expressly agreed that the aggregate amount of the actual Best
Metal Finishing, Inc. Capital Expenditures included in clause (b) of
the preceding sentence shall not exceed $4,400,000 in the aggregate
for the period consisting of the fiscal years 2001 and 2002.
Fixed Charges shall mean for any period of determination the sum of
interest expense, cash income taxes, scheduled principal installments
on Indebtedness (as adjusted for prepayments), capital expenditures
(excluding for the 2001 and 2002 fiscal years Best Metal Finishing,
Inc. Capital Expenditures), and payments under capitalized leases, in
each case of the Borrower and its Subsidiaries for such period
determined and consolidated in accordance with GAAP.
(c) Clause (ix) is hereby added to Section 8.2.1 [Indebtedness] as
follows:
"(ix) Indebtedness of Best Metal Finishing, Inc. to The Friendship
State Bank pursuant to that certain Loan Agreement by and between Best
Metal Finishing, Inc. and The Friendship State Bank (the "Osgood Loan
Agreement") in an aggregate principal amount at any one time not to
exceed $1,200,000. (the "Xxxxxx Debt")"
(d) Clause (xii) is hereby added to Section 8.2.2 [Liens] as follows:
"(xii) Liens, security interests and mortgages in and on the Xxxxxx
Property in favor of The Friendship State Bank, pursuant to that
certain Mortgage and Security Agreement by and between Best Metal
Finishing, Inc. and The
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Friendship State Bank (the "Osgood Mortgage") in an aggregate
principal amount at any one time, not to exceed $1,200,000."
(e) Section 8.2.3 [Guarantees] is hereby amended and restated in its
entirety as follows:
"Each of the Loan Parties shall not, and shall not permit any of its
Subsidiaries to, at any time, directly or indirectly, become or be
liable in respect of any Guaranty, or assume, guarantee, become surety
for, endorse or otherwise agree, become or remain directly or
contingently liable upon or with respect to any obligation or
liability of any other Person, except for (i) Guaranties of
Indebtedness of the Loan Parties under the Loan Documents in favor of
the Agent for the benefit of the Banks, (ii) guaranties of
Subsidiaries of the Borrower of the Indebtedness and other obligations
of the Borrower under the 11% Notes in accordance with the terms of
the Note Indenture, and (iii) a guarantee of Elgin National
Industries, Inc. to The Friendship State Bank, pursuant to that
certain Guaranty Agreement (the "Xxxxxx Guaranty") in an aggregate
principal amount at any one time, not to exceed $1,200,000.
(f) Section 8.2.15 [Capital Expenditures and Leases] is hereby
amended and restated in its entirety as follows:
"Commencing with the fiscal year of January 1, 2001 ending
December 31, 2001, the Loan Parties and their Subsidiaries shall not
make any payments exceeding $3,500,000 in the aggregate in any fiscal
year (plus any unused portion of such amount from the prior fiscal
year) on account of the purchase or lease of any assets, which if
purchased would constitute fixed assets or which if leased would
constitute a capitalized lease, or any payments exceeding $3,000,000
in the aggregate in any fiscal year on account of the rental or lease
of real or personal property of any other Person which does not
constitute a capitalized lease, and all such capital expenditures and
leases shall be made under usual and customary terms and in the
ordinary course of business. With respect to Best Metal Finishing,
Inc. for the period consisting of the fiscal years 2001 and 2002, in
addition to any amounts permitted by the immediately preceding
sentence of this Section 8.2.15, Best Metal Finishing, Inc. may make
Capital Expenditure Payments not to exceed in the aggregate
$4,400,000."
(g) The following Schedules to the Credit Agreement are hereby
amended and restated in the forms attached hereto:
Schedule 6.1.1
Schedule 6.1.3
Schedule 6.1.8
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(h) The following Section 8.2.21 is hereby added to the Credit
Agreement to read as follows:
"8.2.21 Matters Relating to the Xxxxxx Debt.
-----------------------------------
The Loan Parties shall not and shall not permit any of their Subsidiaries
to prepay amounts due pursuant to the Xxxxxx Loan Agreement or related loan
documents without the prior written consent of the Agent and the Required Banks,
provided, however, so long as no Event of Default or Potential Default exists
after giving effect thereto, in any fiscal year after making the Mandatory
Prepayment of Excess Cash Flow required pursuant to Section 5.5.1 with respect
to Excess Cash Flow attributable to the immediately preceding fiscal year, the
Loan Parties may utilize Excess Cash Flow attributable to such immediately
preceding fiscal year with respect to which no Mandatory Prepayment of Excess
Cash Flow is required in order to prepay principal under the Xxxxxx Loan
Agreement. The Loan Parties shall not amend and shall not permit to be amended
any material provision of the Xxxxxx Loan Agreement, the Xxxxxx Mortgage, the
Xxxxxx Guaranty, or any other documentation related to the Xxxxxx Debt (all of
the foregoing, collectively, the "Xxxxxx Documents") without the prior written
consent of the Agent and the Required Banks, which shall not be unreasonably
withheld or delayed. The Loan Parties shall provide copies to the Agent of any
notices of any waivers or consents and notices of default or termination
received by any Loan Party under the Xxxxxx Documents within two (2) Business
Days of receipt thereof."
3. Waivers to Provisions of Credit Agreement.
(a) With respect to the Xxxxxx Property, the Required Banks hereby waive
the provisions of Section 7.1.3 [Delivery of Loan Documents] as such
Section relates to the requirement of delivery of a Mortgage, Section
7.1.7 [Environmental Audit] and Section 7.1.14 [Title Insurance] and
agree that the Loan Parties shall not be required to deliver a
Mortgage, Environmental Audit or Title Insurance with respect to the
Xxxxxx Property.
4. Representations and Warranties. The Loan Parties hereby represent and
warrant to the Banks as follows:
A. The representations and warranties of Loan Parties contained in the
Credit Agreement are true and correct on and as of the date hereof with the same
force and effect as though made by the Loan Parties on such date, except to the
extent that any such representation or warranty expressly relates solely to a
previous date; and
B. The Loan Parties are in compliance with all terms, conditions,
provisions, and covenants contained in the Credit Agreement and the execution,
delivery, and performance of this Amendment have been duly authorized by all
necessary corporate action, require no governmental approval, and will neither
contravene, conflict with, nor result in the breach of any
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law, charter, articles, or certificate of incorporation, bylaws, or agreement
governing or binding upon the Loan Parties or any of their property; and, no
Event of Default or Potential Default has occurred and is continuing or would
result from the making of this Amendment.
5. Conditions of Effectiveness of this Amendment. The effectiveness of this
Amendment is expressly conditioned upon satisfaction of each of the following
conditions precedent:
A. Fees and Expenses. The Borrower shall pay or cause to be paid to the
Agent the reasonable costs and expenses of the Agent including, without
limitation, reasonable fees of the Agent's counsel in connection with this
Amendment.
B. Legal Details; Counterparts. All legal details and proceedings in
connection with the transactions contemplated by this Amendment shall be in form
and substance satisfactory to the Agent, and the Agent shall have received from
the Borrower and the Required Banks all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Agent.
C. No Default. As of the date hereof, no Event of Default or Potential
Default has occurred and is continuing and Borrower byexecuting this Amendment
confirms the same and also confirms the accuracy of the representations and
warranties in Section 3 above.
D. Guarantor Joinder Documentation. Best Metal Finishing, Inc. shall have
executed and delivered to the Agent the Guarantor Joinder and Assumption
Agreement in the form of Exhibit 1.1(G)(1) to the Credit Agreement, and Best
Metal Finishing, Inc. and Elgin National Industries, Inc. shall have executed
and delivered to the Agent an Environmental Indemnity Agreement relative to the
Xxxxxx Property in the form of Exhibit 1.1(I)(1) to the Credit Agreement. Best
Metal Finishing, Inc. shall have executed UCC-1 financing statements in favor of
the Agent for the benefit of the Banks relative to the personal property of Best
Metal Finishing, Inc., and Elgin National Industries, Inc. shall have delivered
to the Agent a stock power and stock certificate of the shares of Best Metal
Finishing, Inc.
E. Opinion of Counsel. The Borrower shall have delivered to the Agent an
Opinion of Borrower's Counsel as set forth in Section 7.1.4 to the Credit
Agreement.
F. Secretary's Certificate. The Borrower shall have delivered to the Agent
a Secretary's Certificate as set forth in Section 7.1.2 to the Credit Agreement.
G. Certificate of Insurance. The Borrower shall have delivered to the Agent
an insurance certificate of Best Metal Finishing, Inc. as set forth in Section
7.1.13 to the Credit Agreement.
H. Intercreditor Agreement. The Friendship State Bank, Best Metal
Finishing, Inc. and the Agent shall have executed and delivered an Intercreditor
Agreement substantially in the form of Exhibit 1 to this Amendment relative to
the collateral located at the Xxxxxx Property.
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I. Updated Schedules. The Borrower shall have delivered to the Agent an
updated Schedule A to the Security Agreement and an updated Schedule A to the
Pledge Agreement to give effect to Best Metal Finishing, Inc.
X. Xxxxxx Documents. The Borrower shall have delivered to the Agent copies
of all documentation relating to the Osgood Debt, including but not limited to
the Xxxxxx Loan Agreement, the Xxxxxx Mortgage and the Xxxxxx Guaranty.
6. Amendment. The Credit Agreement and certain of the schedules thereto are
hereby amended in accordance with the terms hereof and any reference to the
Credit Agreement shall hereafter mean and include the Credit Agreement,
including such schedules, as amended hereby.
7. Force and Effect. Borrower reconfirms, restates, and ratifies the Credit
Agreement and all other documents executed in connection therewith except to the
extent any such documents are expressly modified by this Amendment and each of
the Loan Parties confirms that all such documents have remained in full force
and effect since the date of their execution.
8. Governing Law. This Amendment shall be deemed to be a contract under the
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles.
9. Counterparts. This Amendment may be signed in any number of counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10. Effective Date. This Amendment shall be effective as of and shall be
dated as of the date of satisfaction of all conditions set forth in Section 4 of
this Amendment.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 4 TO SECOND AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF and intending to be legally bound hereby, the parties
hereto have executed this Amendment as of the date first above written.
ATTEST: ELGIN NATIONAL INDUSTRIES, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxx
-------------------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxx
--------------------------------- --------------------------
Title: Admin. Asst. Title: V.P. Mfg.
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[Seal]
EACH GUARANTOR LISTED ON
SCHEDULE 1 HERETO
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxx
--------------------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxx
--------------------------------- --------------------------
Title: Admin. Asst. Title: V.P. Mfg.
-------------------------------- ------------------------
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SCHEDULE 1
XXXXXX CONSTRUCTION COMPANY
CENTRIFUGAL SERVICES, INC.
CLINCH RIVER CORPORATION
ENI INTERNATIONAL, LTD
ELGIN INTERNATIONAL, LTD
XXXXXX-XXXXXX FASTENERS, INC.
MINING CONTROLS, INC.
XXXXXX SCREEN AND MANUFACTURING INC.
PRECISION SCREW & BOLT, INC.
XXXXXXX & XXXXXXXX COMPANY
XXXXXXX & XXXXXXXX INTERNATIONAL, LTD
XXXXX ASSOCIATES, INC.
XXXXX INTERNATIONAL, LTD
XXXXX MACHINE COMPANY
XXXXXXXX-XXXXXXXX CONSTRUCTION COMPANY, INC.
TRANSERVICE, INC.
VANCO INTERNATIONAL, INC.
BEST METAL FINISHING, INC.
[SIGNATURE PAGE 2 OF 4 TO SECOND AMENDMENT TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxx
------------------------------------------------
Title: AVP
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[SIGNATURE PAGE 3 OF 4 TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------------------
Title: Vice President
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[SIGNATURE PAGE 4 OF 4 TO SECOND AMENDMENT TO CREDIT AGREEMENT]
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------------------
Title: Vice President
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EXHIBIT 1
[FORM OF INTERCREDITOR AGREEMENT]
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