EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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10.33 -- Third Amendment to Loan Agreement ($35,000,000 U.S.
Revolving Loan Facility, $10,000,000 Canadian Revolving Loan
Facility, $5,000,000 U.K. Revolving Loan Facility and
$50,000,000 Term Loan Facility) dated as of July 31, 2003,
but effective April 1, 2003 among NATCO Group Inc., NATCO
Canada, Ltd., Axsia Group Limited, JPMorgan Chase Bank
(successor in interest to The Chase Manhattan Bank), acting
as agent for the U.S. Lenders, Royal Bank of Canada, acting
as agent for the Canadian Lenders, and X.X. Xxxxxx Europe
Limited, acting as agent for the U.K. Lenders.
10.34 -- Amendment of Directors Compensation Plan
31.1 -- Certification of Chief Executive Officer of NATCO Group Inc.
pursuant to 15 U.S.C.ss.7241, as adopted pursuant to Section
302 of the Xxxxxxxx- Xxxxx Act of 2002
31.2 -- Certification of Chief Financial Officer of NATCO Group Inc.
pursuant to 15 U.S.C.ss.7241, as adopted pursuant to Section
302 of the Xxxxxxxx- Xxxxx Act of 2002
32.1 -- Certification of Chief Executive Officer and Chief Financial
Officer of NATCO Group Inc. pursuant to 18 U.S.C.ss.1350, as
adopted pursuant to Section 906 of the Xxxxxxxx-Xxxxx Act of
2002
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EXHIBIT 10.33
THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made and
entered into as of April 1, 2003 (the "Amendment Effective Date") by and among
NATCO GROUP INC., a Delaware corporation (the "U.S. Borrower"); NATCO CANADA,
LTD., a corporation formed under the laws of the Province of Ontario (the
"Canadian Borrower"); AXSIA GROUP LIMITED, a company incorporated in England and
Wales under the Companies Act of the United Kingdom (the "U.K. Borrower"); each
of the lenders which is or may from time to time become a party to the Loan
Agreement (as defined below) (individually, a "Lender" and, collectively, the
"Lenders"), JPMORGAN CHASE BANK (successor in interest to The Chase Manhattan
Bank), acting as agent for the U.S. Lenders (in such capacity, together with its
successors in such capacity, the "U.S. Agent"); ROYAL BANK OF CANADA, acting as
agent for the Canadian Lenders (in such capacity, together with its successors
in such capacity, the "Canadian Agent"), and X.X. XXXXXX EUROPE LIMITED
(successor in interest to Chase Manhattan International Limited), acting as
agent for the U.K. Lenders (in such capacity, together with its successors in
such capacity, the "U.K. Agent"). The U.S. Borrower, the Canadian Borrower and
the U.K. Borrower are herein collectively called the "Borrowers" and the U.S.
Agent, the Canadian Agent and the U.K. Agent are herein collectively called the
"Agents".
RECITALS
A. The Borrowers, the Lenders and the Agents executed and delivered
that certain Loan Agreement (as amended, the "Loan Agreement") dated as of March
16, 2001, as amended by instruments dated as of September 17, 2001 and July 29,
2002. Any capitalized term used in this Amendment and not otherwise defined
shall have the meaning ascribed to it in the Loan Agreement.
B. The Borrowers, the Lenders and the Agents desire to amend the Loan
Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and further good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers, the Lenders and the Agents do hereby agree as
follows:
SECTION 1. Amendments to Loan Agreement. On and after the Amendment
Effective Date, the Loan Agreement is hereby amended as follows:
(a) Section 7.3(b) of the Loan Agreement is hereby amended to read
in its entirety as follows:
(b) Funded Debt to EBITDA Ratio - a Funded Debt to EBITDA Ratio of
not greater than (1) 3.75 to 1.00 at all times during the period
commencing on April 1, 2003 through and including June 30, 2003, (2)
3.25 to 1.00 at all times during the period
commencing on July 1, 2003 through and including September 30, 2003, (3) 2.75 to
1.00 at all times during the period commencing on October 1, 2003 through and
including December 31, 2003, and (4) 2.50 to 1.00 at all times thereafter.
(b) Section 7.3(c) of the Loan Agreement is hereby amended to read
in its entirety as follows:
(c) Fixed Charge Coverage Ratio - a Fixed Charge Coverage Ratio of
not less than (1) 1.00 to 1.00 at all times during the period
commencing on April 1, 2003 through and including June 30, 2003, (2)
1.125 at all times during the period commencing on July 1, 2003 through
and including September 30, 2003 and (3) 1.25 to 1.00 at all times
thereafter.
(c) Section 8.15 of the Loan Agreement is hereby amended to read
in its entirety as follows:
8.15 Acquisitions. Acquire any real Property or any material
personal Property after the Effective Date (other than acquisitions of
real or personal Property in the ordinary course of business) with
respect to which the aggregate cash consideration (exclusive of
consideration paid in equity and net of additional equity contributions
made to U.S. Borrower by any of its shareholders which is restricted to
be used for the applicable acquisition in a manner satisfactory to the
Majority Lenders) for a single transaction would exceed (x) if the
Fixed Charge Coverage Ratio is less than 1.25 to 1.00, during the
period commencing on April 1, 2003 through and including December 31,
2003, $5,000,000 and (y) otherwise, $10,000,000.
SECTION 2. Ratification. Except as expressly amended by this Amendment,
the Loan Agreement and the other Loan Documents shall remain in full force and
effect. None of the rights, title and interests existing and to exist under the
Loan Agreement are hereby released, diminished or impaired, and the Borrowers
hereby reaffirm all covenants, representations and warranties in the Loan
Agreement.
SECTION 3. Amendment Fee. As a condition precedent to the effectiveness
of this Amendment, the Borrower shall pay to the Agent (for payment to the
applicable Lenders) a fee equal to 0.25% times the sum of (x) the Canadian
Commitment of each Lender which shall have joined in the execution of this
Amendment plus (y) the U.K. Commitment of each such Lender plus (z) the U.S.
Commitment of each such Lender.
SECTION 4. Expenses. The Borrowers shall pay to the Agents all
reasonable fees and expenses of their respective legal counsel (pursuant to
Section 11.3 of the Loan Agreement) incurred in connection with the execution of
this Amendment.
SECTION 5. Certifications. The Borrowers hereby certify that (a) no
event which could reasonably be expected to have a Material Adverse Effect has
occurred and is continuing and (b)
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no Default or Event of Default has occurred and is continuing or will occur as a
result of this Amendment.
SECTION 6. Miscellaneous. This Amendment (a) shall be binding upon and
inure to the benefit of the Borrowers, the Lenders and the Agents and their
respective successors, assigns, receivers and trustees; (b) may be modified or
amended only by a writing signed by the required parties; (c) shall be governed
by and construed in accordance with the laws of the State of Texas and the
United States of America; (d) may be executed in several counterparts by the
parties hereto on separate counterparts, and each counterpart, when so executed
and delivered, shall constitute an original agreement, and all such separate
counterparts shall constitute but one and the same agreement and (e) together
with the other Loan Documents, embodies the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, consents and understandings relating to such subject matter.
The headings herein shall be accorded no significance in interpreting this
Amendment.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODESS.26.02
THE LOAN AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND ALL OTHER LOAN
DOCUMENTS EXECUTED BY ANY OF THE PARTIES PRIOR HERETO OR SUBSTANTIALLY
CONCURRENTLY HEREWITH CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agents have
caused this Amendment to be signed by their respective duly authorized officers,
effective as of the date first above written.
NATCO GROUP INC,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------------------
Xxxxxxx X. XxxxXxxxxx, Senior Vice President
and Chief Financial Officer
NATCO CANADA, LTD., a corporation formed
under the laws of the Province of Ontario
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------------------
Xxxxxxx X. XxxxXxxxxx, Vice President
AXSIA GROUP LIMITED,
a company incorporated in England and Wales
under the Companies Act of the United Kingdom
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------------------
Xxxxxxx X. XxxxXxxxxx,
Authorized Signatory
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JPMORGAN CHASE BANK, as U.S. Agent, Issuer of
U.S. Letters of Credit and a U.S. Lender
By: /s/ XXXXXX XXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
5
X.X. XXXXXX EUROPE LIMITED,
as U.K. Agent
By: /s/ X. XXXX /s/ X. XXXXX
--------------------------------------------
Name: X. Xxxx X. XXXXX
Title: Associate Associate
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JPMORGAN CHASE BANK,
as Issuer of U.K. Letters of Credit and a
U.K. Lender
By: /s/ XXXXXX XXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
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ROYAL BANK OF CANADA, as
Canadian Agent, Issuer of
Canadian Letters of Credit
and a Canadian Lender
By: /s/ X. X. XXXXXXXX
-------------------------------------------
Name: X. X. Xxxxxxxx
Title: Senior Manager
8
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
By: /s/ XXXXX XXXXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
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BANK ONE, NA (MAIN OFFICE CHICAGO,
ILLINOIS), as Syndications Agent and a
U.S. Lender
By: /s/ XXXXXX XXXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
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ARAB BANKING CORPORATION B.S.C.
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
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DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers Trust
Company)
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
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MIDFIRST BANK
By: /s/ W. XXXXXX XXXXXXX
-------------------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
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The undersigned hereby join in this Amendment to evidence their consent
to execution by Borrowers of this Amendment, to confirm that each Loan Document
now or previously executed by the undersigned applies and shall continue to
apply to the Loan Agreement, as amended hereby, to acknowledge that without such
consent and confirmation, Lender would not execute this Amendment and to join in
the notice pursuant to Tex. Bus. & Comm. Codess.26.02 set forth above.
NATIONAL TANK COMPANY, a Delaware corporation,
TOTAL ENGINEERING SERVICES TEAM, INC., a
Louisiana corporation, and NATCO LONDON, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
------------------------------------------
Xxxxxxx X. XxxxXxxxxx,
Vice President and Treasurer
STARFISH ACQUISITION LIMITED, a company
incorporated in England and Wales under the
Companies Act of the United Kingdom,
and AXSIA GROUP LIMITED, a company
incorporated in England and Wales under the
Companies Act of the United Kingdom
By: /s/ XXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Company Secretary
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