Exhibit 10.10
WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT
This WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Waiver and
Amendment") is made and entered into as of this 8th day of November, 2002, by
and among PNC BANK, NATIONAL ASSOCIATION, in its capacity as the agent under the
hereinafter defined Credit Agreement (in such capacity the "Agent"), the BANKS
party to the Credit Agreement, ELGIN NATIONAL INDUSTRIES, INC., a Delaware
corporation (the "Borrower"), and the GUARANTORS party to the Credit Agreement.
WITNESSETH
WHEREAS, reference is made 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, as of June 28, 2001, and as of March 31,
2002 (the "Credit Agreement");
WHEREAS, the Borrower has requested that the Agent and the Banks waive
compliance with certain financial covenants under the Credit Agreement for a
fixed period of time; and
WHEREAS, the parties hereto wish to amend certain portions of the
Credit Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and in the Credit Agreement and for
other good and valuable consideration, the mutuality, receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
Defined Terms.
Capitalized terms used herein, not otherwise defined herein, shall have the
meanings given to them under the Credit Agreement.
Temporary Waiver of Certain Provisions of Credit Agreement.
The Borrower hereby requests and the Agent and the Banks hereby waive,
for the period commencing on September 30, 2002 and ending at 11:59 P.M.
(Pittsburgh, Pennsylvania time) on January 31, 2003 (the "Waiver Period") the
following provisions:
Compliance for the period commencing July 1, 2002 through and including
September 30, 2002 with Sections 8.2.16 [Minimum Fixed Charge Coverage Ratio],
8.2.17 [Maximum Leverage Ratio], and 8.2.18 [Minimum Interest Coverage Ratio] of
the Credit Agreement; and
The Borrower's non-compliance with the provisions of the Credit Agreement set
forth in the foregoing clause 1. of this Section B constituting a Potential
Default during the Waiver Period.
Amendments to Credit Agreement.
Section 1.1 [Certain Definitions] of the Credit Agreement is hereby amended by
the addition, in alphabetical order, of the following new definitions of
"Consolidated EBITDA Projection" and "Fourth Amendment Effective Date":
"Consolidated EBITDA Projection shall have the meaning set forth in
Section 6.1.9 (iv)."
"Fourth Amendment Effective Date shall mean November 8, 2002, which
date shall be the effective date of the Waiver and Fourth Amendment,
among the Agent, the Banks, and the Loan Parties, to the Credit
Agreement."
Section 2.3 [Commitment Fees.] is hereby amended by deleting in the first
sentence thereof clause (b) in its entirety and inserting in lieu thereof the
following:
"(b) from and after the Initial Adjustment Date through, but not
including, the Fourth Amendment Effective Date, a fee per annum equal
to the percentage set forth on the pricing grid at Schedule 1.1(A)
based upon the ratio of the Borrower's Consolidated Total Debt to
Annual Consolidated EBITDA, calculated as set forth in (a) above, and
(c) from and after the Fourth Amendment Effective Date, a fee of 1/2 %
per annum, calculated as set forth in (a) above."
Section 4.1.1 [Revolving Credit Interest Rate Options.] is hereby amended and
restated in its entirety to read as follows:
"4.1.1 Revolving Credit Interest Rate Options.
(a) The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Revolving Credit Loans for any
period prior to the Fourth Amendment Effective Date:
(i) Revolving Credit Base Rate Option: A fluctuating
rate per annum (computed on the basis of a year of 365
or 366 days, as the case may be, and actual days
elapsed) equal to the Base Rate plus the Applicable
Margin, such interest rate to change automatically from
time to time effective as of the effective date of each
change in the Base Rate; or
(ii) Revolving Credit Euro-Rate Option: A rate per
annum (computed on the basis of a year of 360 days and
actual days elapsed) equal to the Euro-Rate plus the
Applicable Margin.
(b) All Revolving Credit Loans made on and after the Fourth
Amendment Effective Date shall bear interest at a fluctuating rate per
annum (computed on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed) equal to the Base Rate plus 1.75%,
such interest rate to change automatically from time to time effective
as of the effective date of each change in the Base Rate. A Revolving
Credit Loan which is subject to the Revolving Credit Euro-Rate Option
on the date immediately preceding the Fourth Amendment Effective Date
shall continue to be subject to such Interest Rate Option until the
Euro-Rate Interest Period applicable thereto has expired, and from and
after the date of expiration of such Euro-Rate Interest Period such
Revolving Credit Loan shall bear interest at a fluctuating rate per
annum (computed on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed) equal to the Base Rate plus 1.75%,
such interest rate to change automatically from time to time effective
as of the effective date of each change in the Base Rate. "
Section 4.1.2 [Term Loan Interest Rate Options.] is hereby amended and restated
in its entirety to read as follows:
"4.1.2 Term Loan Interest Rate Options.
(a) The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Term Loans for any period
prior to the Fourth Amendment Effective Date:
(i) Term Loan Base Rate Option: A fluctuating rate
per annum (computed on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed)
equal to the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time
effective as of the effective date of each change in
the Base Rate; or
(ii) Term Loan Euro-Rate Option: A rate per annum
(computed on the basis of a year of 360 days and actual
days elapsed) equal to the Euro-Rate plus the
Applicable Margin.
(b) Any portion of the Term Loans which is subject to the Term
Loan Euro-Rate Option on the date immediately preceding the Fourth
Amendment Effective Date shall continue to be subject to such Interest
Rate Option until the Euro-Rate Interest Period applicable thereto has
expired, and from and after the date of expiration of such Euro-Rate
Interest Period such portion of the Term Loans shall bear interest at
a fluctuating rate per annum (computed on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed) equal to the
Base Rate plus 1.75%, such interest rate to change automatically from
time to time effective as of the effective date of each change in the
Base Rate. Any portion of the Term Loans which is subject to the Term
Loan Base Rate Option on the date immediately preceding the Fourth
Amendment Effective Date shall from and after the Fourth Amendment
Effective Date bear interest at a fluctuating rate per annum (computed
on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) equal to the Base Rate plus 1.75%, such interest
rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate. "
Section 4.3.2 [Other Obligations] is hereby amended and restated in its entirety
to read as follows:
" 4.3.2 Other Obligations.
Each other Obligation hereunder if not paid when due shall bear
interest at a rate per annum equal to: (i) for any period prior to the
Fourth Amendment Effective Date, the sum of the rate of interest
applicable under the Revolving Credit Base Rate Option plus an
additional two percent (2%) per annum from the time such Obligation
becomes due and payable and until it is paid in full, and (ii) for any
period on or after the Fourth Amendment Effective Date, the Base Rate
plus an additional three and three-quarters percent (3.75%) per annum
from the time such Obligation becomes due and payable and until it is
paid in full."
Section 4.5 [Selection of Interest Rate Options.] is hereby amended by deleting
the first word "If" in the first sentence thereof and inserting in lieu thereof
the words, "Subject to the provisions of Sections 4.1.1 and 4.1.2 hereof which
prohibit Loans from being subject to a Euro-Rate Option, as applicable, on or
after the Fourth Amendment Effective Date, if, during any period when the
Borrower may elect a Euro-Rate Option,".
Section 6.1.9 [Financial Statements] of the Credit Agreement is hereby amended
by adding thereto the following new clause (iv):
"(iv) Consolidated EBITDA Projection. The Borrower has delivered to
the Agent a projection of Consolidated EBITDA of the Borrower and its
Subsidiaries for the months of October through and including December
of 2002 (the "Consolidated EBITDA Projection"). The Consolidated
EBITDA Projection is reasonable in light of the history of the
business, present and foreseeable conditions and the intentions of the
Borrower's management."
Article 8.2 [Negative Covenants] is hereby amended by inserting the following
new Section 8.2.21 [Minimum Consolidated EBITDA]:
"Section 8.2.21 Minimum Consolidated EBITDA
The Loan Parties shall not permit Consolidated EBITDA,
calculated as of the last day of each month set forth below, to be
less than the amount set forth below for the specified month:
Month Ended Minimum Consolidated EBITDA
October 31, 2002 $907,200
November 30, 2002 $900,600
December 31, 2002 $1,144,800"
Clause (i) of the first sentence of Section 2 [Letter of Credit Fees.] of
Exhibit 2.9 [Letter of Credit Provisions] is hereby amended and restated in its
entirety to read as follows:
"(i) to the Agent for the ratable account of the Banks a fee (the
"Letter of Credit Fee") equal to, for periods prior to the Fourth
Amendment Effective Date, the Applicable Margin for the Revolving
Credit Euro-Rate Option per annum and for periods on or after the
Fourth Amendment Effective Date 3.50% per annum, and".
Section 1 [Monthly Financial Statements.] of Exhibit 8.3 [Reporting
Requirements] is hereby amended by inserting after the second paragraph thereof
the following additional paragraph:
"As soon as available and in any event within thirty (30) calendar
days after the end of each calendar month ending on or after October
31, 2002, a detailed calculation of Consolidated EBITDA for such month
and a certification by an Authorized Officer of the Borrower of the
Borrower's compliance with Section 8.2.21 [Minimum Consolidated
EBITDA] for such month."
Release. As additional consideration for the Agent's and the Banks' entering
into this Waiver and Amendment, the Borrower hereby fully and unconditionally
releases and forever discharges the Agent and the Banks, their agents,
employers, directors, officers, attorneys, branches, affiliates, subsidiaries,
successors and assigns and all persons, firms, corporations and
organizations acting on any of their behalves (the "Released Parties") of
and from any and all claims, liabilities, demands, obligations, damages,
losses, actions and causes of action whatsoever which the Borrower, its
Subsidiaries, or any of them may now have or claim to have against the Agent
or any Bank or any other Released Parties as of the date hereof, whether
presently known or unknown and of any nature and extent whatsoever,
including, without limitation, on account of or in any way affecting,
concerning or arising out of or founded upon this Waiver and Amendment or
the Loan Documents, including but not limited to all such loss or damage
of any kind heretofore sustained or that may arise as a consequence of the
dealings between the parties up to and including the date hereof, including
but not limited to, the administration or enforcement of the Loans, the
Obligations or any of the Loan Documents.
Closing Fees. The Loan Parties jointly and severally agree to reimburse the
Agent and the Banks on demand for all costs, expenses and disbursements
relating to this Waiver and Amendment which are payable by the Loan Parties
as required in accordance with the Credit Agreement. In addition, the Loan
Parties shall pay to the Agent for the benefit of each Bank which on or
before the effective date hereof executes this Waiver and Amendment (each
an "Approving Bank"), an aggregate fee equal to $30,000, to be allocated
among such Banks in accordance with their respective Ratable Share.
Conditions of Effectiveness. The effectiveness of this Waiver and Amendment
is expressly conditioned upon the occurrence and completion
of all of the following:
The representations and warranties of the Loan Parties contained in Section 6 of
the Credit Agreement and in the other Loan Documents shall be true and correct
on the date hereof with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which relate solely to an earlier date or time, which representations
and warranties shall be true and correct on and as of the specific dates or
times referred to therein), the Loan Parties shall have performed and complied
with all covenants and conditions thereof, and no Event of Default or Potential
Default under the Credit Agreement shall have occurred and be continuing or
shall exist, except as expressly waived by this Waiver and Amendment. By
execution and delivery to the Agent of this Waiver and Amendment, the Loan
Parties shall be deemed to have certified the accuracy of all of the matters in
this Section F.1; Receipt by the Agent on behalf of the Banks of all fees, costs
expenses and disbursements due and payable to the Agent and any Bank as of the
date hereof and for all fees, costs, expenses and disbursements in connection
with this Waiver and Amendment, including, without limitation, the fees and
expenses set forth in Section E of this Waiver and Amendment; and
All legal details and proceedings in connection with the transactions
contemplated by this Waiver and Amendment shall be in form an substance
satisfactory to the Agent. The Agent shall have received counterparts of this
Waiver and Amendment duly executed by the Loan Parties, the Agent, and the
Required Banks.
There shall be delivered to the Agent for the benefit of each Bank a certificate
dated the effective date hereof and signed by the Secretary or an Assistant
Secretary of each of the Loan Parties, certifying as appropriate as to:
a. all action taken by each Loan Party in connection with this
Waiver and Amendment;
b. the names of the officer or officers authorized to sign this
Waiver and Amendment and the true signatures of such officer or
officers and specifying the officers authorized to act on behalf
of each Loan Party for purposes of this Waiver and Amendment and
the true signatures of such officers, on which the Agent and each
Bank may conclusively rely; and
c. a confirmation that the organizational documents, including its
certificate of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation, and
limited liability company agreement as previously certified to
the Agent and delivered to the Agent on the Closing Date remain
in full force and effect as of the effective date hereof, without
amendment thereto.
This Waiver and Amendment shall be dated as of and shall be effective from
and as of the date and year first above written, which date shall be deemed
to be the date of satisfaction of all conditions precedent to the
effectiveness of this Waiver and Amendment as set forth in this Section F.
Consent of Banks. Pursuant to Section 11 of the Credit Agreement, this
Waiver and Amendment shall require the written consent of the Required
Banks, which shall be evidenced by the execution and delivery to the Agent
by the Required Banks of counterparts of this Waiver and Amendment and from
and after the effective date of this Waiver and Amendment, this Waiver and
Amendment shall be binding upon each Loan Party, the Agent and each of the
Banks.
Full Force and Effect. Each Loan Party reconfirms, restates, and ratifies
the Credit Agreement and all other Loan Documents executed in connection
therewith, and subject to the amendment of the Credit Agreement as
expressly provided by this Waiver and Amendment, each of the Loan Parties
confirms that all of the Loan Documents have remained and continue to
remain in full force and effect since the date of their execution. No
novation is intended or shall occur by or as a result of this Waiver and
Amendment.
The parties hereto do not amend or waive any provisions of the Credit
Agreement or the other Loan Documents except as expressly set forth herein.
Counterparts. This Waiver and Amendment may be executed by different
parties hereto in any number of separate counterparts, each of which, when
so executed and delivered, either personally or by facsimile transmission
with confirmation of delivery, shall be an original, and all of such
counterparts shall together constitute one and the same instrument. Any
party that delivers its original counterpart signature to this Waiver and
Amendment by facsimile transmission hereby covenants to personally deliver
its original counterpart signature promptly thereafter to the Agent.
Governing Law. This Waiver and Amendment shall be deemed to be a contract
under the laws of the State of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws
of the State of Pennsylvania without regard to its conflict of laws
principles.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 4 TO WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF and intending to be legally bound hereby, the parties
hereto have executed this Waiver and Amendment as of the date first above
written.
ATTEST: ELGIN NATIONAL INDUSTRIES, INC.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
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Title: Vice President/ Controller Title: Vice President/ CFO
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[Seal]
EACH GUARANTOR LISTED ON
SCHEDULE 1 HERETO
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
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Title: Vice President/Controller Title: Vice President/ CFO
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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.
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 WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: SVP
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[SIGNATURE PAGE 3 OF 4 TO WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT]
BANK OF SCOTLAND
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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[SIGNATURE PAGE 4 OF 4 TO WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT]
NATIONAL CITY BANK
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: First Vice President
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