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Exhibit 10(w)
AMENDMENT NO. 4
Dated as of October 25, 1996
THIS AMENDMENT NO. 4 ("Amendment") is entered into as of
October 25, 1996 by and among THE XXXXXX & SESSIONS CO., an Ohio corporation
(the "Borrower"), GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("GE Capital"), as the sole "Lender" (as defined in the Loan Agreement referred
to below) and GE Capital as agent for the Lenders (in such capacity, the
"Agent").
PRELIMINARY STATEMENT
A. The Borrower, the Lender and the Agent are parties to that
certain Loan Agreement dated as of February 13, 1992, as amended and restated as
of July 14, 1995 (as amended from time to time, the "Loan Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Loan Agreement as amended by this Amendment.
B. The Borrower has entered into a Stock Purchase Agreement
(the "Dimango Purchase Agreement"), dated as of October 25, 1996, with Dimango
Products Corporation ("Dimango"), Xxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxx, pursuant to which the Borrower has agreed to
acquire all of the outstanding capital stock of Dimango.
C. The Lender and the Agent have agreed to such acquisition,
subject to the terms hereof, and the Borrower, the Lender and the Agent
accordingly have agreed to amend the Loan Agreement on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower, the Lenders and the Agent hereby
agree as follows:
SECTION 1. AMENDMENT TO THE LOAN AGREEMENT. Subject to the
satisfaction of the conditions precedent set forth in Section 2 below, the Loan
Agreement is hereby amended as follows:
1.01. SECTION 1.1 of the Loan Agreement is amended by adding
the following definitions, to be inserted in Section 1.1 in alphabetical order:
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"DIMANGO" shall mean Dimango Products Corporation, a Michigan
corporation and a wholly-owned subsidiary of the Borrower.
"DIMANGO GUARANTY" shall mean that certain Guaranty and
Security Agreement dated October 25, 1996 executed by Dimango in favor
of the Agent, guarantying the Obligations and granting to the Agent a
security interest in all of Dimango's personal property.
"DIMANGO LOAN AGREEMENT" shall mean that certain Loan
Agreement dated as of October 25, 1996 between Borrower, as lender, and
Dimango, as borrower, establishing a loan facility in an amount not to
exceed $2,500,000.
"DIMANGO LOAN AGREEMENT ASSIGNMENT" shall mean that certain
Assignment dated as of October 25, 1996, executed by Borrower and
acknowledged by Dimango, assigning to the Agent, for the benefit of the
Lenders, all of Borrower's rights under the Dimango Loan Agreement.
"DIMANGO PLEDGE AGREEMENT" shall mean that certain Pledge
Agreement dated October 25, 1996 executed by Borrower in favor of the
Agent, pledging to the Agent all of the stock of Dimango.
"DIMANGO PURCHASE AGREEMENT" shall mean that certain Stock
Purchase Agreement dated as of October 25, 1996 by and among Borrower,
Xxxxxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxx.
"DIMANGO PURCHASE AGREEMENT ASSIGNMENT" shall mean that
certain Assignment of Purchase Agreement Rights, dated as of October
25, 1996, pursuant to which Borrower assigns to the Agent for the
benefit of itself and the Lenders its rights under the Dimango Purchase
Agreement.
1.02. SECTION 1.1 of the Loan Agreement is further amended by
adding the following after "the Letter of Credit Agreement," in the definition
of "Loan Documents":
"the Dimango Loan Agreement, the Dimango Loan Agreement
Assignment, the Dimango Guaranty, the Dimango Pledge Agreement, the
Dimango Purchase Agreement Assignment,".
1.03. SECTION 8.1 of the Loan Agreement is amended by adding
"(other than Dimango)" after the words "form any Subsidiary" appearing in such
Section.
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1.04. SECTION 8.2 of the Loan Agreement is amended by striking
"and " prior to clause (h) thereof, and "and" prior to clause (h)(iii) thereof,
and adding the following immediately preceding the period at the end of SECTION
8.2:
"; and (iv) loans to Dimango pursuant to the Dimango Loan
Agreement, in an amount not to exceed $2,500,000 at any time
outstanding, provided that any such loans are assigned to the
Agent pursuant to the Dimango Loan Agreement Assignment; and
(i) the stock of Dimango acquired pursuant to the Dimango
Purchase Agreement."
1.05. SECTION 8.3(a) of the Loan Agreement is amended by
striking "and "prior to clause (viii) thereof and adding the following
immediately preceding the period at the end of SECTION 8.3:
"; and (ix) Indebtedness of Dimango to the Borrower under the
Dimango Loan Agreement"
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall
become effective upon the first Business Day upon which all
of the following conditions shall be satisfied:
(i) the Agent shall have received four (4) copies of this
Amendment duly executed by the Borrower, the Lender and the
Agent;
(ii) the Agent shall have received Reaffirmations of Guaranty
and Security Agreement in substantially the form of EXHIBIT A
attached hereto, duly executed by each of Xxxxxx Chimes and
Youngstown Steel Door;
(iii) the Borrower and Dimango shall have executed and
delivered the Dimango Loan Agreement, the Dimango Loan
Agreement Assignment and the Dimango Purchase Agreement
Assignment, and delivered executed copies thereof to the
Agent;
(iv) Dimango shall have executed and delivered to the Agent,
in form and substance satisfactory to the Agent, the Dimango
Guaranty;
(v) Dimango shall have executed and delivered to the Agent
such UCC-1 financing statements as the Agent may request in
order to perfect the security interests granted by the
security agreement described in clause (iv) above; and
(vi) Borrower shall have executed and delivered to the Agent,
in form and substance satisfactory to the Agent, the Dimango
Pledge Agreement, together with stock certificates
representing all issued and outstanding stock of Dimango and
signed but undated stock powers endorsed in blank covering
such certificates; and
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(vii) The Agent shall have received an executed copy of the
Dimango Purchase Agreement and Borrower shall have acquired
all of the outstanding stock of Dimango pursuant to the terms
of the Dimango Purchase Agreement.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
3.1 Upon the effectiveness of this Amendment, the Borrower
hereby reaffirms all covenants, representations and warranties made by it in the
Loan Agreement to the extent the same are not amended hereby and agrees that all
such covenants, representations and warranties shall be deemed to have been
re-made as of the effective date of this Amendment.
3.2 The Borrower hereby represents and warrants that this
Amendment constitutes the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general principles of equity which may limit the availability of
equitable remedies.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN AGREEMENT.
4.1 Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein,"
"hereby" or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby, and each reference to the Loan Agreement in any
other document, instrument or agreement executed and/or delivered in connection
with the Loan Agreement shall mean and be a reference to the Loan Agreement as
amended hereby.
4.2 Except as specifically amended hereby, the Loan Agreement
and other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
4.3 The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
Lender or the Agent under the Loan Agreement or any of the other Loan Documents,
nor constitute a waiver of any provision contained therein, except as
specifically set forth herein.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS
OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS.
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SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 7. HEADINGS. Section headings in this Amendment
are included herein for convenience or reference only and shall not constitute
a part of this Amendment for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereto duly authorized as
of the date first written above.
THE XXXXXX AND SESSIONS CO.
By:/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Executive Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as the Agent
and as the sole Lender
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Duly Authorized Signatory
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