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Exhibit 10.26
SIXTH AMENDMENT
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TO
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FINANCING AGREEMENT
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This Sixth Amendment to Financing Agreement (the "Amendment")
is made as of the 14th day of April, 1999 (the "Effective Date"), by and between
SPECIALTY CHEMICAL RESOURCES, INC., a Delaware corporation ("Borrower") and
FIRSTAR BANK, N.A. FKA 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 , as amended by that
Second Amendment to Financing Agreement, dated as of April 14, 1998, as amended
by that Third Amendment to Financing Agreement, dated as of May 20, 1998, as
amended by that Fourth Amendment to Financing Agreement, dated as of November
12, 1998, and as amended by that Fifth Amendment to Financing Agreement, dated
as of February 12, 1999 (as so amended, the "Financing Agreement"), pursuant to
which Bank has made certain financial accommodations available to Borrower;
WHEREAS, Borrower hereby acknowledges that it is in default of
certain covenants under the Financing Agreement and has discussed with Bank
Borrower's need for additional capitalization in the form of a cash investment,
the purpose of which is to meet working capital requirements; and
WHEREAS, Borrower and Bank desire to amend the Financing
Agreement to provide, among other things, for the permanent reduction of the
principal amount of the Total Facility from Fourteen Million Dollars
($14,000,000) to Twelve Million Dollars ($12,000,000), for the reestablishment
of certain financial covenants and for the above-described subordinated debt,
and as otherwise 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:
SECTION 1. DEFINED TERMS.
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SECTION 1.1, DEFINED TERMS, of the Financing Agreement shall
be amended by adding the new defined terms, or by modifying existing defined
terms, as applicable, as follows:
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1.1. The definition of "REVOLVING LOAN AVAILABILITY" shall be deleted
in its entirety and the following is substituted in place thereof:
"REVOLVING LOAN AVAILABILITY" shall mean, as at any date, an
amount equal to the difference of:
(i) THE LESSER OF (a) the difference of Twelve Million Dollars
($12,000,000) LESS (W) the then aggregate outstanding principal amount of
Term Loan A LESS (X) the then aggregate outstanding principal amount of
Term Loan B LESS (Y) the then aggregate outstanding principal amount of
the Acquisition Special Advance LESS (Z) the Reserve Amount then in
effect, OR (b) an amount equal to the then Borrowing Base;
LESS
(ii) the then aggregate outstanding principal amount of all
Revolving Loans.
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 2 OF THE FINANCING AGREEMENT.
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2.1. SECTION 2.1, TOTAL FACILITY, shall be hereby amended by deleting
the words and figure "Fourteen Million Dollars ($14,000,000)" wherever the same
appears in said Section and inserting in its place the words and figure "Twelve
Million Dollars ($12,000,000)".
SECTION 3. MODIFICATIONS OF EXHIBITS AND SCHEDULES.
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The following Exhibit and Schedule to the Financing Agreement shall be
added or amended, as applicable, as set forth in this SECTION 3 to the
Amendment:.
3.1. ADDENDUM TO EXHIBIT L. EXHIBIT L shall be amended by adding
thereto ADDENDUM TO EXHIBIT L, FINANCIAL COVENANTS, attached hereto and
incorporated by reference herein.
SECTION 4. AMENDMENT TO SECTION 10 OF THE FINANCING AGREEMENT.
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4.1. SECTION 10. COVENANTS, is hereby amended by:
(a) adding a new section 10.45 as follows:
10.45 ENGAGEMENT OF MANAGEMENT CONSULTANT. Borrower shall have
entered into a written agreement, no later than June 30, 1999, with a
management consultant acceptable to the Bank and to the Board of
Directors of the Borrower, for the purpose of assisting the Borrower with
a review of its operations and implementing a plan to improve the
financial performance of the Borrower.
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(b) adding a new section 10.46 as follows:
10.46 CASH CONTRIBUTION AND ESTABLISHMENT OF FUTURE FINANCIAL
COVENANTS. (i) On or before June 30, 1999, Bank shall have received
notice from Borrower that Borrower has received cash in the minimum
amount of One Million Dollars ($1,000,000) representing either a cash
equity contribution or the proceeds of unsecured indebtedness of Borrower
(the "Cash Contribution"), which Cash Contribution shall be subordinate,
upon terms and conditions satisfactory to Bank in its sole discretion, to
the prior and indefeasible payment in full of all Obligations, (ii) on or
before June 30, 1999, Borrower shall have received no less than One
Million Dollars ($1,000,000) in accordance with the terms described in
section 10.46(i) above, and (iii) upon receipt of no less than One
Million Dollars ($1,000,000) on or before June 30, 1999, in accordance
with the terms described in section 10.46(i) above, Bank, in its sole
discretion, will establish Financial Covenants beyond June 30, 1999
consistent with the projections provided to Bank by Borrower in March of
1999.
(c) adding a new section 10.47 as follows:
10.47 AMENDMENT FEE. Borrower shall pay to Bank an Amendment Fee
in the amount of Fifty Thousand Dollars ($50,000), payable in three (3)
consecutive monthly installments as follows: (i) $16,666.67 to be due and
payable on the date of the execution of the Sixth Amendment to Financing
Agreement, (ii), $16,666.66 to be due and payable on May 1, 1999 and
(iii) $16,666.66 to be due and payable on June 1, 1999.
SECTION 5. 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:
5.1. 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.
5.2. 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.
5.3. 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
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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.
5.4. REAFFIRMATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Borrower hereby reaffirms and agrees to be bound by all representations,
warranties and covenants made or entered into by 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; provided, however, that the foregoing is subject to the
exception that Borrower may currently be in default of certain financial
covenants and that Borrower and Bank have agreed that, if any such default
exists, this Amendment shall not operate as a waiver thereof by Bank.
5.5. 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
agreement executed and/or delivered in connection with the Financing Agreement
shall mean and be a reference to the Financing Agreement, as amended hereby.
SECTION 6. 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:
AMENDMENT TO FINANCING AGREEMENT. Bank shall have received an original
counterpart of this Sixth Amendment to Financing Agreement executed and
delivered by a duly authorized officer of Borrower.
6.1. RESOLUTIONS. Bank shall have received certified resolutions of
Borrower authorizing Borrower to execute, deliver and perform this Amendment.
6.2. 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.
6.3. AMENDMENT FEE. Borrower shall pay to Bank the sum of $16,666.67
representing that portion of the Amendment Fee due on the date hereof, and
Borrower shall reimburse Bank for all of the costs and expenses incurred by Bank
in the negotiation and preparation of this Amendment, including, but not limited
to, Attorney's Fees.
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SECTION 7. MODIFICATIONS OF EXHIBITS AND SCHEDULES.
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The following Exhibits and Schedules to the Financing Agreement shall
be added or amended, as applicable, as set forth in this SECTION 7 to the
Amendment:
7.1. ADDENDUM TO EXHIBIT L, FINANCIAL COVENANTS. ADDENDUM TO EXHIBIT L,
FINANCIAL Covenants shall be amended by deleting the existing Addendum to
Exhibit L in its entirety and replacing it with the ADDENDUM TO EXHIBIT L,
FINANCIAL COVENANTS, attached hereto and incorporated by reference herein.
SECTION 8. MISCELLANEOUS.
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8.1. 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.
8.2. 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.
8.3. 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.
8.4. 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.
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IN WITNESS WHEREOF, Borrower has caused this Sixth Amendment to
Financing Agreement to be duly executed and delivered by its duly authorized
officer as of the date first above written.
Signed in Macedonia, Ohio, on April 14, 1999.
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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 and acknowledged SPECIALTY CHEMICAL RESOURCES, INC.
in the presence of:
/s/ Xxxxx Xxxxxxxx
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Name: /s/ Xxxxx Xxxxxxxx Xxxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxxxx By: Xxxxx X. Xxxxx
------------------------- Its: Chief Financial Officer
Name: Xxxxx X. Xxxxxxx
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STATE OF OHIO )
)ss:
COUNTY OF _________________ )
The foregoing instrument was acknowledged before me this 14th day
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April, 1999, by Xxxxx X. Xxxxx, Chief Financial Officer of Specialty Chemical
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Resources, Inc., a Delaware corporation, on behalf of the corporation.
Xxxxxxx X. Xxxxxx
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Notary Public
XXXXXXX X. XXXXXX
Accepted at Cincinnati, Ohio NOTARY PUBLIC STATE OF OHIO
as of April 14, 1999. Recorded in Cuyahoga County
My Comm. Expires 11-27-99
FIRSTAR BANK, N.A., fka
STAR BANK, NATIONAL ASSOCIATION
By: Xxxxxxx X. Xxxxxx
Its: Vice President
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ADDENDUM TO EXHIBIT L
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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 (i) One Million Dollars ($1,000,000) for the
fiscal year ending December 31, 1997, (ii) Nine Hundred Thousand
Dollars ($900,000) for the fiscal year ending December 31, 1998, (iii)
Twenty Three Thousand Dollars ($23,000) for the period from January 1,
1999 through March 31, 1999, and (iv) One Hundred Fifty Thousand
Dollars ($150,000) for the period from January 1, 1999 through June 30,
1999.
(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:
EBITDA Periods
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$740,000 04/01/98 to 06/30/98
$1,500,000 01/01/98 to 09/30/98
$767,000 01/01/98 to 12/31/98
$460,000 01/01/99 to 03/31/99
$1,113,000 01/01/99 to 06/30/99
(C) FIXED CHARGE COVERAGE RATIO. Not permit Borrower's ratio of EBITDA to
its Fixed Charges ("Fixed Charge Coverage Ratio") (excluding (i) any
amounts previously relent by Bank to Borrower under SECTION 2.5 hereof
and (ii) the Capitalization Cash actually received by Borrower) to be
less than the following:
Fixed Charge Coverage Ratio Period
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1.00 to 1.00 04/01/98 to 06/30/98
1.00 to 1.00 01/01/98 to 09/30/98
0.36 to 1.00 01/01/98 to 12/31/98
0.72 to 1.00 01/01/99 to 03/31/99
0.80 to 1.00 01/01/99 to 06/30/99
(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:
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Tangible Net Worth Date
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$8,000,000 06/30/98
$8,650,000 09/30/98
$7,250,000 12/31/98
$7,250,000 03/31/99
$7,300,000 06/30/99
(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:
Ratio Of Total Liabilities To
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Tangible Net Worth Date
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2.69 to 1.00 06/30/98
2.32 to 1.00 09/30/98
2.28 to 1.00 12/31/98
2.50 to 1.00 03/31/99
2.50 to 1.00 06/30/99
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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
(including, but not limited to, the amount of principal payments on (i)
Term Loan A actually deferred for the months of May, June and July 1998
and (ii) Term Loan B actually deferred for the months of May, June and
July 1998), 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 NET 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 Charge.
Upon receipt of fiscal 1999 and 2000 projections as required at SECTION 8.6
hereof, Financial Covenants set forth herein will be established, upon terms
satisfactory to Bank, and upon receipt of no less than One Million Dollars
($1,000,000) on or before June 30, 1999, in accordance with the terms described
in section 10.46(i) above, Bank, in its sole discretion, will establish
Financial Covenants beyond June 30, 1999 consistent with the projections
provided to Bank by Borrower in March of 1999.
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III. Interest Rate Reduction Tests
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Applicable Interest Rate
1) Fixed Charge Coverage for previous four fiscal quarter period
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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