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EXHIBIT 4.4
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of February 13,
1997 (the "Amendment"), is entered into among SPECIALTY EQUIPMENT COMPANIES,
INC., a Delaware corporation (the "Company"), the "Banks" (as defined herein)
and BANK OF AMERICA ILLINOIS, as agent for the Banks (in such capacity, the
"Agent").
R E C I T A L S:
A. The Company, the banks named therein (the "Banks") and the
Agent entered into that certain Credit Agreement, dated as of December 1, 1996,
as amended by a First Amendment to Credit Agreement, dated as of January 15,
1997 (the "Credit Agreement").
B. The Company has requested that the Agent and the Banks enter
into this Amendment in order to provide for the issuance of bankers acceptances
and to amend certain other provisions of the Credit Agreement.
C. Capitalized terms used herein and not otherwise defined shall
have the meanings provided for in the Credit Agreement.
1. AMENDMENT
1.1 Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition of Bankers Acceptances to Section 1.1 of the
Credit Agreement in the appropriate alphabetical sequence:
""BANKERS ACCEPTANCES" means bankers acceptances issued by the
Issuing Bank upon acceptance by the Issuing Bank of time
drafts presented pursuant to Letters of Credit."
1.2 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of LC Disbursement contained therein and inserting the
following in its stead:
""LC DISBURSEMENT" shall mean any payment or disbursement made
by the Issuing Bank under or pursuant to a Letter of Credit or
a Bankers Acceptance."
1.3 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of LC Exposure contained therein and inserting the
following in its stead:
""LC EXPOSURE" shall mean, without duplication, at any time,
the sum of (a) the aggregate undrawn amount of all Letters of
Credit outstanding at such time, plus (b) the aggregate unpaid
amount of all Bankers Acceptances outstanding at such time,
plus (c) the aggregate amount which has been drawn under
Letters of Credit or paid under Bankers Acceptances but for
which the Issuing Bank or the Banks, as the case may be, have
not been reimbursed by the Company at such time."
1.4 Section 2.7 of the Credit Agreement is hereby deleted and the
following is inserted in its stead:
"2.7 LETTERS OF CREDIT AND BANKERS ACCEPTANCES.
"(a) Subject to the terms and conditions and
relying upon the representations and warranties herein set
forth, the Issuing Bank agrees, at any time and from time to
time on or after the Closing Date until the Termination Date,
to issue and deliver or to extend the expiry of Letters of
Credit and/or Bankers Acceptances for the account of the
Company in an aggregate undrawn amount at any one time
outstanding which does not exceed (i) $19,000,000 during the
period from January 15, 1997 through and including April 14,
1997, and (ii) $15,000,000 at all other times (the "L/C
Facility Commitment"); provided, however, that the Issuing
Bank shall not issue or extend the expiry of any Letter of
Credit or Bankers Acceptance if, immediately after giving
effect to such issuance or extension the aggregate outstanding
principal balance of the Revolving Loans and the LC Exposure
would exceed the aggregate Commitments. Each Letter of Credit
(x) shall be in a form approved in writing by the Company, the
Agent and the Issuing Bank, (y) shall be in a minimum
principal amount of $5,000 and (z) shall permit drawings upon
the presentation of one or more sight drafts, or one or more
time drafts for a period not to exceed six months, and such
other documents as shall be specified by the Company in the
applicable notice and Application delivered pursuant to
subsection 2.7(c) below.
"(b) Each Letter of Credit shall by its terms
expire not later than the earlier of (i) the first anniversary
of the date of issuance or extension (subject to extension for
additional one-year periods by the Issuing Bank as
contemplated by paragraph (a) above) and (ii) the Termination
Date. Each Bankers Acceptance shall have a term of six months
or less. Each Letter of Credit and each Bankers Acceptance
shall by its terms provide for payment of drawings in dollars.
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"(c) The Company shall give the Issuing Bank
written or telecopy notice not later than 10:00 a.m., Chicago
time, two Business Days (or such shorter period as shall be
acceptable to the Issuing Bank and the Agent) prior to any
proposed issuance of a Letter of Credit. Each such notice
shall refer to this Agreement and shall specify (i) the date
on which such Letter of Credit is to be issued (which shall be
a Business Day), the face amount of such Letter of Credit
(which shall be an amount in dollars), (ii) the name and
address of the beneficiary, (iii) whether such Letter of
Credit shall permit a single drawing or multiple drawings,
(iv) the form of the sight draft or time draft, as the case
may be, and any other documents required to be presented at
the time of any drawing (together with the exact wording of
such documents or copies thereof) and (v) the expiry date of
such Letter of Credit (which shall conform to the provisions
of paragraph (b) above). At the time of each request by the
Company that a Letter of Credit be issued, the Issuing Bank,
at its option, may require the Company to execute and deliver
to the Issuing Bank an application for such Letter of Credit
in the form customarily prescribed by the Issuing Bank to
issue Letters of Credit (the "Applications"). This Agreement
supersedes any terms of the Applications which are
inconsistent with the terms hereof. The Issuing Bank shall
give the Agent, which shall in turn give to each Bank, prompt
written or telecopy advice of any notice received from the
Company pursuant to this subsection.
"(d) By the issuance of a Letter of Credit or
Bankers Acceptance and without any further action on the part
of the Issuing Bank or the Banks in respect thereof, the
Issuing Bank hereby grants to each Bank, and each Bank hereby
agrees to and does acquire from the Issuing Bank, a
participation in such Letter of Credit or Bankers Acceptance
equal to such Bank's pro rata share, of the face amount of
such Letter of Credit or Bankers Acceptance, effective upon
the issuance of such Letter of Credit or Bankers Acceptance;
provided, however, that no Bank shall be required to acquire
participations in Letters of Credit or Bankers Acceptances
that would result in its Pro Rata Share, based upon its
Commitment, of the LC Exposure exceeding its Commitment. In
consideration and in furtherance of the foregoing, each Bank
hereby absolutely and unconditionally agrees to pay to the
Agent, on behalf of the Issuing Bank, in accordance with
subsection (f) below, such Bank's Pro Rata Share, of each
unreimbursed LC Disbursement made by the Issuing Bank;
provided, however, that the Banks shall not be obligated to
make any such payment with respect to any wrongful payment or
disbursement made under any Letter of Credit as a result of
the failure in any material respect of the Issuing Bank or any
confirming bank to comply with the obligations imposed on it
with respect to such Letter of Credit by the Uniform Customs
and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce, Publication No. 500 and
subsequent revisions (the "Uniform Customs") or applicable
law.
"(e) Each Bank acknowledges and agrees that its
acquisition of participations pursuant to subsection (d) above
in respect of Letters of Credit and Bankers Acceptances is
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and
continuance of any Default or Event of Default hereunder, and
that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
"(f) Promptly after it shall have ascertained that
any draft and any accompanying documents presented under a
Letter of Credit or Bankers Acceptance appear to be in
conformity with the terms and conditions of such Letter of
Credit or Bankers Acceptance, the Issuing Bank shall give
written or telecopy notice to the Company and the Agent of the
receipt and amount of such draft and the date on which payment
thereon will be made. If the Agent shall not have received
from the Company the payment required pursuant to subsection
(g) below by 12:00 noon, Chicago time, one Business Day after
the date on which payment of a draft presented under any
Letter of Credit or Bankers Acceptance has been made, the
Agent shall promptly so notify the Issuing Bank and each Bank,
specifying in the notice to each Bank such Bank's Pro Rata
Share of such LC Disbursement. Each Bank shall pay to the
Agent, not later than 2:00 p.m., Chicago time, on such date,
such Bank's percentage of such LC Disbursement, which the
Agent shall promptly pay to the Issuing Bank. The Agent will
promptly remit to each Bank such Bank's percentage of any
amounts subsequently received by the Agent from the Company in
respect of such LC Disbursement; provided that (i) amounts so
received for the account of any Bank prior to payment by such
Bank of amounts required to be paid by it hereunder in respect
of any LC Disbursement and (ii) amounts representing interest
on any LC Disbursement for the period prior to the payment by
such Bank of such amounts shall in each case be remitted to
the Issuing Bank.
"(g) If the Issuing Bank shall pay any draft
presented under a Letter of Credit or Bankers Acceptance under
circumstances entitling it to reimbursement under succeeding
provisions of this subsection (g), the Company shall pay to
the Issuing Bank or to the Agent for the account of the
Issuing Bank or, if the Agent shall have received the payments
provided in subsection (f) above with respect to such drawing,
for the accounts of the Banks, an amount equal to the amount
of such draft before 12:00 noon, Chicago time, on the Business
Day immediately following the date of payment of such draft,
together with interest on such amount at a rate per annum
equal to the interest rate in effect for Reference Rate Loans
from (and including) the date of payment of such draft to (but
excluding) the date of such payment by the Company. The
obligation of the Company to pay the amounts referred to above
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in this subsection (g) shall be absolute, unconditional and
irrevocable and shall be satisfied strictly in accordance with
their terms irrespective of:
"(i) any lack of validity or
enforceability of any Letter of Credit or Bankers
Acceptance;
"(ii) the existence of any claim, setoff,
defense or other right which the Company or any other
Person may at any time have against the beneficiary
under any Letter of Credit, the Agent, the Issuing
Bank, any confirming bank or any Bank (other than the
defense of payment in accordance with the terms of
this Agreement or a defense based on the failure in
any material respect of the Issuing Bank or
confirming bank to comply with the obligations
imposed on it with respect to such Letter of Credit
by the Uniform Customs or applicable law) or any
other Person in connection with this Agreement or any
other transaction;
"(iii) any draft or other document
presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any
respect; provided that payment by the Issuing Bank or
confirming bank under such Letter of Credit against
presentation of such draft or document shall not have
constituted a failure in any material respect by the
Issuing Bank or confirming bank to comply with the
obligations imposed on it with respect to such Letter
of Credit by the Uniform Customs or applicable law.
"(iv) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or
other document which does not comply in any
immaterial respect with the terms of such Letter of
Credit; provided that such payment shall not have
constituted gross negligence or wilful misconduct; or
"(v) any other circumstance or event
whatsoever, whether or not similar to any of the
foregoing; provided that such other circumstance or
event shall not have been the result of gross
negligence or wilful misconduct of the Issuing Bank.
"It is understood that in making any payment under a
Letter of Credit (x) the Issuing Bank's exclusive reliance on
the documents presented to it under such Letter of Credit as
to any and all matters set forth therein, including, without
limitation, reliance on the amount of any draft presented
under such Letter of Credit, whether or not the amount due to
the beneficiary equals the amount of such draft and whether or
not any document presented pursuant to such Letter of Credit
proves to be forged, fraudulent or invalid in any respect, if
such document on its face appears to be in order, and whether
or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or
untrue in any respect whatsoever, and (y) any noncompliance in
any immaterial respect of the documents presented under a
Letter of Credit with the terms thereof shall, in either case,
not be deemed a failure in any material respect by the Issuing
Bank or confirming bank to comply with the obligations imposed
on it with respect to such Letter of Credit by the Uniform
Customs or applicable law.
"(h) Neither the Issuing Bank nor its
correspondents or agents, or any bank(s) or financial
institution(s) used by the Issuing Bank in connection with the
issuance of Letters of Credit ("Correspondent"), shall be
responsible for (i) the use which may be made of the Letters
of Credit or Bankers Acceptances or for any acts or omissions
of the user(s) of the Letters of Credit or Bankers
Acceptances; (ii) the existence, character, quality, quantity,
condition, packing or value of the property purporting to be
represented by the documents required by the terms of any
Letters of Credit or Bankers Acceptances or presented in
connection therewith ("Documents"); (iii) the time, place,
manner or order in which shipment is made; (iv) except as
otherwise provided in subsection 2.7(g)(iii), the validity,
sufficiency, or genuineness of Documents, or of any
endorsements thereon, even if such Documents should in fact
prove to be in any or all respects invalid, insufficient,
fraudulent, or forged; (v) partial or incomplete shipment, or
failure or omission to ship any or all of the property
referred to in the Letters of Credit, Bankers Acceptances or
the Documents; (vi) the character, adequacy, validity or
genuineness of any insurance or solvency or responsibility of
any insurer or any other risk connected with insurance; (vii)
any deviation from instructions, delay, default or fraud by
the shipper or anyone else in connection with the property
referred to in the Letters of Credit, Bankers Acceptances or
the Documents or the shipping thereof; (viii) the insolvency,
responsibility or relationship to the property of any party
issuing any documents in connection with the property referred
to in the Letters of Credit; (ix) delay in arrival or failure
to arrive of either the property referred to in the Letters of
Credit or the Documents; (x) delay
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in giving or failure to give notice of arrival or any other
notice; (xi) any breach of contract between the shipper(s) or
vendor(s) and the consignee(s) or buyer(s); (xii) failure of
any instrument to bear any reference or adequate reference to
the Letter of Credit or Bankers Acceptances or failure of
Documents to accompany any instrument at negotiation, or
failure of any person to note the amount of any instrument on
the reverse of the Letter of Credit or Bankers Acceptances or
to send forward Documents apart from instruments as required
by the terms of the Letter of Credit or Bankers Acceptances or
to send forward Documents apart from instruments as required
by the terms of the Letter of Credit or Bankers Acceptances,
each of which provisions, if contained in the Letter of Credit
or itself, it is agreed may be waived by the Issuing Bank or
Correspondent; or (xiii) errors, omissions, interruptions or
delays in transmission or delivery of any messages by mail,
cable, telegraph, wireless or otherwise, whether or not they
may be in cipher. Further, the Issuing Bank shall not be
responsible for any act, error, neglect or default, omission,
insolvency or failure in business of any of its
Correspondents. The occurrence of any one or more of the
contingencies referred to in the preceding sentences of this
subsection 2.7(h) shall not affect, impair or prevent the
vesting of any of the Issuing Bank's rights or powers
hereunder or the Company's obligation to make reimbursement.
The Company shall promptly examine (i) the copy of the Letter
of Credit or Bankers Acceptance (and of any amendments
thereof) sent to it by the Issuing Bank or Correspondent and
(ii) all documents and instruments delivered to it from time
to time by the Issuing Bank or Correspondent, and, in the
event of any claim of noncompliance with the Company's
instructions or other irregularity, will promptly notify the
Issuing Bank and Correspondent thereof in writing, the Company
being conclusively deemed to have waived any such claim
against the Issuing Bank and Correspondent unless such notice
is given within two Business Days following receipt by the
Company of such Letter of Credit, amendment, document or
instrument.
"(i) Upon any transfer, sale, delivery, surrender
or endorsement of any xxxx of lading, warehouse receipt or
other Document at any time(s) held by the Issuing Bank, or
held for its account by any of its correspondents or agents,
or any bank or financial institution used by the Issuing Bank
in connection with the issuance of Letters of Credit or
Bankers Acceptances, relative to the Letter of Credit or
Bankers Acceptance, the Company will indemnify and hold the
Issuing Bank and any such correspondent(s), agent(s), bank(s)
and financial institution(s), harmless from and against each
and every claim, demand, action or suit which may arise
against the Issuing Bank or any correspondent(s), agent(s),
bank(s) and financial institution(s), by reason thereof."
2. MISCELLANEOUS
2.1 LIMITED NATURE OF AMENDMENTS. The parties hereto acknowledge
and agree that the terms and provisions of this Amendment amend, add to and
constitute a part of the Credit Agreement. Except as expressly modified and
amended by the terms of this Amendment, all of the other terms and conditions
of the Credit Agreement and all documents executed in connection therewith or
referred to or incorporated therein remain in full force and effect and are
hereby ratified, reaffirmed, confirmed and approved.
2.2 CONFLICT. If there is an express conflict between the terms
of this Amendment and the terms of the Credit Agreement, or any of the other
agreements or documents executed in connection therewith or referred to or
incorporated therein, the terms of this Amendment shall govern and control.
2.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original.
2.4 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks as follows: (A) the Company has all
necessary power and authority to execute and deliver this Amendment and perform
its obligations hereunder; (B) this Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of the
Company and are enforceable against the Company in accordance with their terms;
and (C) all representations and warranties of the Company contained in the
Credit Agreement and all other agreements, instruments and other writings
relating thereto are true and complete as of the date hereof.
2.5 GOVERNING LAW. This Amendment shall be construed in
accordance with and governed by and the internal laws of the State of Illinois,
without giving effect to choice of law principles.
IN WITNESS WHEREOF, the Company, the Agent and the Banks have caused
this Amendment to be duly executed by their respective authorized officers as
of the day and year first above written.
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SPECIALTY EQUIPMENT COMPANIES, INC.
By:
Name:
Title:
BANK OF AMERICA ILLINOIS, as Agent
By:
Name:
Title:
BANK OF AMERICA ILLINOIS, as a Bank
By:
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, as a Bank
By:
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as a Bank
By:
Name:
Title:
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