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Exhibit 10.16
EXECUTION COPY
SECOND AMENDMENT
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TO
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FINANCING AGREEMENT
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This Second Amendment to Financing Agreement (the "Amendment") is made
as of the 14th day of April, 1998, by and between Specialty Chemical Resources,
Inc., a Delaware corporation ("Borrower") and Star Bank, National Association, a
national banking association ("Bank").
WITNESSETH:
WHEREAS, Borrower and Bank have entered into that certain Financing
Agreement, dated as of September 18, 1996, as amended by that First Amendment to
Financing Agreement dated as of May 22, 1997 (the "Financing Agreement"),
pursuant to which Bank has made certain financial accommodations available to
Borrower;
WHEREAS, Borrower hereby acknowledges that it is currently in default of
certain financial and other covenants under the Financing Agreement and that it
has discussed with Bank Borrower's need for additional capitalization in the
form of an equity investment, subordinated debt or other form of credit support;
WHEREAS, Borrower hereby acknowledges that it has committed to Bank
(a) that Borrower will deliver to Bank a plan, satisfactory to Bank in its sole
discretion (the "Capitalization Plan"), detailing the amount, source and form of
such additional capitalization no later than April 30, 1998, (b) that Borrower
will have fully consummated the acquisition of such additional capitalization no
later than May 20, 1998, and (c) that, notwithstanding any provision, covenants,
term or agreement to the contrary set forth in the Financing Agreement as
amended hereby, it will constitute an Event of Default under the Financing
Agreement if Borrower shall not timely perform either or both covenants as set
forth in this paragraph;
WHEREAS, Borrower and Bank desire to amend the Financing Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Bank and Borrower do hereby agree as
follows:
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SECTION 1. DEFINED TERMS.
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Each defined term used herein and not otherwise defined herein shall
have the meaning ascribed to such term in the Financing Agreement.
SECTION 2. AMENDMENT TO SECTION 15.8 OF THE FINANCING AGREEMENT.
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SECTION 15.8, FEES AND EXPENSES shall be hereby amended by deleting the
following sentence in its entirety where the same appears in said Section:
The number of audits referred to in CLAUSE (IV) of the first sentence of
this SECTION 15.8 shall be limited to no more than four (4) such audits
per calendar year and the amount payable by Borrower for each such audit
shall not exceed Two Thousand Four Hundred Dollars ($2,400) plus the
out-of-pocket expenses of each auditor or field examiner and no more
than three (3) auditors or field examiners shall be used in connection
with each such audit; PROVIDED, HOWEVER, that if an Event of Default
occurs, such limitations shall no longer apply.
SECTION 3. AMENDMENTS TO EXHIBIT L TO FINANCING AGREEMENT.
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SCHEDULE L of the Financing Agreement shall be amended by
deleting existing EXHIBIT L in its entirety and substituting in place thereof
the following EXHIBIT L.
EXHIBIT L
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I. Financial Covenants
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FINANCIAL COVENANTS. Borrower agrees that it shall
(A) CAPITAL EXPENDITURES. Not make capital expenditures (including, but not
by way of limitation, expenditures for fixed assets or leases
capitalized or required to be capitalized on Borrower's books by
purchase, lease-purchase agreement, option or otherwise) in an aggregate
amount exceeding $1,000,000 for the fiscal year ending December 31, 1997
and $1,000,000 for each fiscal year, thereafter. No capital expenditures
are permitted to exceed $300,000 from the closing date through December
31, 1996.
(B) EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION, AND AMORTIZATION
(EBITDA). Not permit Borrower's Earnings Before Interest, Taxes,
Depreciation, and Amortization ("EBITDA") to be less than the following
amounts for the following periods:
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EBITDA Periods
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$1,100,000 Fiscal year to date as of 9/30/96
$1,600,000 Fiscal year to date as of 12/31/96
$525,000 Fiscal year to date as of 03/31/97
$1,300,000 Fiscal year to date as of 06/30/97
$2,300,000 Fiscal year to date as of 09/30/97
$821,000 Fiscal year to date as of 12/31/97
$292,000 Fiscal year to date as of 03/31/98
(C) FIXED CHARGE COVERAGE RATIO. Not permit Borrower's ratio of EBITDA to
its Fixed Charges ("Fixed Charge Coverage Ratio") to be less than the
following:
Fixed Charge Coverage Ratio Period
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1.00 to 1.00 01/01/96 to 09/30/96
1.10 to 1.00 10/01/96 to 12/31/96
1.20 to 1.00 01/01/97 to 06/30/97
1.20 to 1.00 01/01/97 to 09/30/97
.31 to 1.00 01/01/97 to 12/31/97
.59 to 1.00 01/01/98 to 03/31/98
(D) TANGIBLE NET WORTH. Not permit Borrower's tangible net worth to be less
than the following amounts at any time by and after the following
periods:
Tangible Net Worth Date
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$6,600,000 Closing
$7,200,000 12/31/96
$7,350,000 03/31/97
$8,500,000 05/31/97
$8,500,000 06/30/97
$9,200,000 09/30/97
$8,150,000 12/31/97
$7,800,000 03/31/98 and thereafter
(E) RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH. Not permit Borrower's
ratio of Total Liabilities to Tangible Net Worth to exceed the following
ratios on or after the following dates:
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(E) Ratio Of Total Liabilities To
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Tangible Net Worth Date
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2.50 To 1.00 Closing to 12/31/96
2.20 to 1.00 01/01/97 to 04/30/97
2.40 to 1.00 05/31/97
2.40 to 1.00 06/30/97
2.20 to 1.00 09/30/97
2.99 to 1.00 12/31/97
3.24 to 1.00 03/31/98 and thereafter
II. Definitions to Financial Covenants
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(A) The term "EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION, AND
AMORTIZATION" or "EBITDA" for purposes of this EXHIBIT L shall mean
Borrower's earnings from operations before income taxes, and interest or
expense, PLUS depreciation, PLUS amortization of all non-cash charges,
all as determined in accordance with generally accepted accounting
principles on a FIFO basis, and shall not include any gains from the
sale of assets outside the normal course of business or any other gains
from extraordinary accounting adjustments or non-recurring items.
(B) The term "FIXED CHARGE" for purposes of this EXHIBIT L shall mean
Borrower's cash interest expense, scheduled principal payments on debt,
dividends, capitalized lease payments, capital expenditures, prepayments
or redemption of principal on subordinated debt, preferred stock or
common stock, tax, cash taxes paid.
(C) The term "TANGIBLE WORTH" for purposes of this EXHIBIT L shall mean the
total of Borrower's book net worth, as determined in accordance with
generally accepted accounting principles, consistently applied, PLUS any
debt subordinate to Borrower's debt to Bank, PLUS any preferred stock
LESS any assets considered intangible.
(D) The term "TOTAL LIABILITIES" for purposes of this EXHIBIT L, shall
include any contingent liabilities and shall have the meaning and be
determined in accordance with generally accepted accounting principles
consistently applied in accordance with past practice. The portion of
any debt subordinate to Borrower's debt to Bank shall be excluded from
Total Liabilities.
(E) The term "EXCESS CASH FLOW" shall mean EBITDA less Fixed Charges.
III. Revision to Financial Covenants and Effectuating Capitalization Plan
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(A) REVISION TO FINANCIAL COVENANTS. Borrower agrees that the Financial
Covenants set forth in paragraphs (B) through (E) of Part I of this
EXHIBIT L shall be revised, in accordance with the mutual agreement of
Bank and Borrower (but subject to the limitation set forth
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in the next sentence), and Borrower will execute and deliver to Bank, no
later than May 15, 1998, an agreement setting forth a revised EXHIBIT L,
FINANCIAL COVENANTS, to the Financing Agreement and containing such
revised covenants. Notwithstanding anything to the contrary, Borrower
agrees that (i) in no event shall Borrower's Fixed Charge Ratio, as the
same may be so revised, for any period commencing after March 31, 1998
be less than 1.00 to 1.00, and (ii) an Event of Default under the
Financing Agreement shall exist and occur in the event Borrower and Bank
are not able mutually to agree to the revisions to Financial Covenants
as described above.
(B) CAPITALIZATION PLAN. Borrower agrees to provide the Capitalization Plan
to Bank, in form and substance satisfactory to Bank in its sole and
absolute discretion, no later than April 30, 1998 and to consummate such
Capitalization Plan, as determined by the Bank in its sole and absolute
discretion, no later than May 20, 1998. Borrower acknowledges that,
prior to the effectiveness of this Amendment, certain Events of Default
existed under the Financing Agreement and Bank was under no obligation
to enter into such Amendment. Consequently, Borrower agrees that (i)
under the circumstances, Bank is entitled to exercise its discretion in
the manner described above, and (ii) in the event Bank determines, in
exercising its sole and absolute discretion, that Borrower shall not
have complied with the conditions set forth in this paragraph, an Event
of Default shall have occurred under the Financing Agreement.
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IV. Interest Rate Reduction Tests
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Applicable Interest
1) Fixed Charge Coverage for previous four fiscal quarter period Rate
2) Total Liabilities/Tangible Net Worth
3) Tangible Net Worth
1) 1.30-1.59
and P+1.00%
2) 1.86-2.00
and
3) $8,000,000 - $8,499,000
1) 1.60-1.79
and P+0.50%
2) 1.71-1.85
and
3) $8,500,000 - $8,999,000
1) 1.80 and greater
and P+0.00%
2) Less than 1.70
and
3) $9,000,000 and greater
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4. SECTION 10 REPRESENTATIONS AND WARRANTIES.
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In order to induce Bank to enter into this Amendment and in addition to
all of the representations, warranties and covenants made by Borrower under the
Financing Agreement and Loan Documents, Borrower hereby represents, warrants and
covenants that, as of the date hereof, any date upon which a Loan is made
hereunder, and until the Obligations are fully paid, performed and satisfied,
the representations, warranties and covenants set forth in the Financing
Agreement and herein are and shall remain true. The Borrower further hereby
represents and warrants to Bank as follows:
4.1 THE AMENDMENT. This Amendment has been duly and validly
executed by an authorized executive officer of Borrower and constitutes
the legal, valid and binding obligation of Borrower enforceable against
Borrower in accordance with its terms.
4.2 FINANCING AGREEMENT. The Financing Agreement, as amended by
this Amendment, remains in full force and effect and remains the valid
and binding obligation of Borrower enforceable against Borrower in
accordance with its terms. Borrower hereby ratifies and confirms the
Financing Agreement as amended by this Amendment.
4.3 NONWAIVER. Except as specifically set forth in this
Amendment, the execution, delivery, performance and effectiveness of
this Amendment shall not operate nor be deemed to be nor construed as a
waiver (i) of any right, power or remedy of Bank under the Financing
Agreement, nor (ii) of any term, provision, representation, warranty or
covenant contained in the Financing Agreement or any other documentation
executed in connection therewith. Further, except as specifically set
forth in this Amendment, none of the provisions of this Amendment shall
constitute, be deemed to be or construed as, a waiver of any Event of
Default under the Financing Agreement as amended by this Amendment.
4.4 REAFFIRMATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Borrower hereby reaffirms and agrees to be bound by all
representations, warranties and covenants made or entered into it under
the Financing Agreement and under any and all Loan Documents. Borrower
hereby represents and warrants to Bank that no Default or Event of
Default shall exist as of the date of this Amendment after giving effect
to this Amendment and none shall be caused to exist as a result of the
execution, delivery and performance by Borrower of this Amendment.
4.5 REFERENCE TO AND EFFECT ON THE FINANCING AGREEMENT. Upon the
effectiveness of this Amendment, each reference in the Financing
Agreement to "this Agreement", "hereunder", "hereof', "herein", or words
of like import shall mean and be a reference to the Financing Agreement,
as amended hereby, and each reference to the Financing Agreement in any
other document, instrument or
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agreement executed and/or delivered in connection with the Financing
Agreement shall mean and be a reference to the Financing Agreement, as
amended hereby.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT.
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In addition to all of the other conditions and agreements set
forth herein, the effectiveness of this Amendment is subject to each of the
following conditions precedent:
5.1 AMENDMENT TO FINANCING AGREEMENT. Bank shall have received
an original counterpart of this Second Amendment to Financing Agreement
executed and delivered by a duly authorized officer of Borrower.
5.2 RESOLUTIONS. Bank shall have received certified resolutions
of Borrower authorizing Borrower to execute, deliver and perform this
Amendment.
5.3 NO MATERIAL ADVERSE CHANGE. There shall have occurred no
material and adverse change in the Borrower's assets, liabilities or
financial condition since the date of the last Financials delivered by
Borrower to Bank nor shall there have been any material damage to or
loss of any of Borrower's assets or properties since such date.
6. MISCELLANEOUS.
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6.1 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the law of the State of Ohio, without
regard to principles of conflict of law.
6.2 SEVERABILITY. In the event any provision of this Amendment
should be invalid, the validity of the other provisions hereof and of
the Financing Agreement shall not be affected thereby.
6.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which, when taken together, shall constitute but
one and the same agreement.
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6.4 CONFESSION OF JUDGMENT. Borrower hereby irrevocably
authorizes and empowers any attorney-at law to appear for Borrower in
any action upon or in connection with this Amendment or the Financing
Agreement, as amended hereby, at any time after the Loans and/or other
Obligations become due, as herein provided, in any court in or of the
State of Ohio or elsewhere, and waives the issuance and service of
process with respect thereto, and irrevocably authorizes and empowers
any such attorney-at-law to confess judgment in favor of Bank against
Borrower, the amount due thereon or hereon, plus interest as herein
provided, and all costs of collection, and waives and releases all
errors in said proceedings and judgments and all rights of appeal from
the judgment rendered. The Borrower agrees and consents that the
attorney confessing judgment on behalf of the Borrower may also be
counsel to Bank or any of Bank's Affiliates, waives any conflict of
interest which might otherwise arise, and consents to Bank paying such
confessing attorney a reasonable legal fee or allowing such attorney's
reasonable fees to be paid from the proceeds of Collateral, the Premises
or any other security for the Loans and the other Obligations.
IN WITNESS WHEREOF, Borrower has caused this Second Amendment to
Financing Agreement to be duly executed and delivered by its duly authorized
officer as of the date first above written.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
Signed in Cleveland, Ohio on April 14, 1998.
Signed and acknowledged SPECIALTY CHEMICAL RESOURCES,
in the presence of: INC.
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Name: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
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------------------------------------------ Its: Vice President - CFO
Name: /s/ Xxx X. Knlick ---------------------------------
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STATE OF OHIO )
) ss:
COUNTY OF CUYAHOGA )
The foregoing instrument was acknowledged before me this 14th day of
April, 1998, by Xxxxx X. Xxxxx, Chief Financial Officer of Specialty Chemical
Resources, Inc., a Delaware corporation, on behalf of the corporation.
/s/ Xxxxxxx Xxxxxx
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Notary Public
Accepted at Cincinnati, Ohio
as of April 14, 1998.
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
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Its: Vice President
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