EX-10.14
AMENDMENT NO. 9
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 9 ("Amendment") is entered into as of June ___,
1997, by and among GENERAL BEARING CORPORATION ("General Bearing"), a Delaware
corporation, HYATT RAILWAY PRODUCTS CORP. ("Hyatt"), a New York corporation,
each having its principal place of business at 00 Xxxx Xxxxxx, Xxxx Xxxxx, Xxx
Xxxx (General Bearing and Hyatt each a "Borrower" and jointly and severally
referred to as "Borrowers") and BNY Financial Corporation (as
successor-in-interest to The Bank of New York Commercial Corporation) having its
principal place of business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Lender").
BACKGROUND
Borrowers and Lender are parties to a Loan and Security Agreement
dated as of December 20, 1993, as amended by (i) Amendment No. 1 to Loan and
Security Agreement dated as of April ___, 1994, (ii) Amendment No. 2 to Loan and
Security Agreement dated as of May 31, 1994, (iii) Amendment No. 3 to Loan and
Security Agreement dated as of November 14, 1994, (iv) Amendment No. 4 to Loan
and Security Agreement dated as of June 19, 1995, (v) Amendment No. 5 to Loan
and Security Agreement dated as of March 1, 1996, (vi) Waiver and Amendment No.
6 to Loan and Security Agreement dated as of March 22, 1996, (vii) Waiver and
Amendment No. 7 to Loan and Security Agreement dated as of September 25, 1996,
(viii) Amendment No. 8 to Loan and Security Agreement dated as of October 31,
1996 and (ix) a Letter Agreement dated March 7, 1997 (as may be further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement") pursuant to which Lender provided Borrowers with certain financial
accommodations.
Borrowers have requested that Lender amend the Loan Agreement and
Lender is willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meaning given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Loan Agreement is hereby
amended as follows:
2.1 Paragraph 1.2 of the Loan Agreement is hereby amended as
follows:
(a) the following defined terms are hereby inserted in their
appropriate alphabetical order:
"Amendment No. 9" means Amendment No. 9 to Loan and Security
Agreement dated as of June ___, 1997.
"Amendment No. 9 Effective Date" shall mean the date on which
Amendment No. 9 becomes effective.
"Adverse Performance Events" means the occurrence at any time, of
any of the following events: (a) Undrawn Availability falls below $1,000,000 for
any three (3) consecutive Business Days; (b) an Event of Default shall occur or
(c) a deterioration in the Collateral shall occur as determined by Lender in its
good faith judgment.
"Applicable Margin" means the percentage set forth below, tested
annually, based upon the Fixed Charge Coverage and the Leverage Ratio maintained
by General Bearing and its subsidiaries on a consolidated basis as at the end of
each fiscal year:
Applicable
Margin
Fixed -----------
Charge Leverage Domestic LIBOR Rate
Level Coverage Ratio Rate Loans Loans
----- -------- -------- ---------- ----------
1 Below 2.00 Above 1.5 1.75% N/A
2 2.0 - 2.9 1.5 - 1.2 1.25% 2.75%
3 3.0 - 4.5 1.2 - 1.0 .75% 2.25%
4 Above 4.5 Below 1.0 .25% 1.75%
The Applicable Margin shall be determined by Lender within twenty
(20) days after receipt by lender of (a) the annual financial statements of
General Bearings and its Subsidiaries on a consolidated basis prepared in
accordance with Section 11(a) of this Agreement and (b) a certificate of
Borrowing Agent's President or Vice-President (Finance) certifying as to the
validity and accuracy of the calculations of the Fixed Charge Coverage and the
Leverage Ratio for such fiscal year, which calculations shall be included in
such certificate. The Applicable margin for any fiscal year shall stay in effect
until the delivery of the items specified in (a) and (b) above for the
subsequent fiscal year. As of the Amendment No. 9 Effective Date, Borrowers
qualify for the Applicable Margin for Level 2.
"Average Monthly LIBOR Rate" means the rate per annum for the one
month LIBOR rate as published in The Wall Street Journal, averaged monthly.
"Borrowing Base Certificate" means a certificate duly executed by an
officer of each Borrower appropriately completed and in substantially the form
of Exhibit 9 hereof.
"Domestic Rate Loan" means a Loan at any time that bears interest at
the Alternate Base Rate.
"Leverage Ratio" means, and includes, with respect to General
Bearings and its Subsidiaries on a consolidated basis for any fiscal year, the
ratio of (a) total Liabilities less the Subordinated Indebtedness as defined the
Subordination Agreement to (b) Tangible Net Worth less the aggregate dollar
value of all investments made by any Borrower in its Affiliates or Subsidiaries.
"Liabilities" means, all amounts which would, in accordance with
GAAP, be included as liabilities on the balance sheet of General Bearings and
its Subsidiaries on a consolidated basis.
"LIBOR Rate Loan" means a Loan at any time that bears interest at
the Average Monthly LIBOR Rate.
(b) the following defined terms are hereby amended in their entirety
to read as follows:
"Contract Rate" means an interest rate per annum equal to (a) the
sum of the Alternate Base Rate plus the Applicable Margin with respect to
Domestic Rate Loans or (b) the sum of the Average Monthly LIBOR Rate plus the
Applicable Margin with respect to LIBOR Rate Loans.
"Inventory Advance Rate" means (i) 55% of the amount of Eligible
Inventory consisting of raw materials; plus (ii) 55% of the amount of Eligible
Inventory consisting of finished goods; plus (iii) 55% of the amount of Eligible
Inventory in transit under Letter of Credit.
"Term" means the Closing Date through June 20, 1999, subject to
acceleration upon the occurrence of the Event of Default hereunder or other
termination hereunder.
2.2 Section 2(h) of the Loan Agreement is hereby amended by deleting
"$1,800,000" in the second sentence thereof and inserting "$5,000,000" in its
place and stead.
2.3 Section 4 of the Loan Agreement is hereby amended by inserting
the following sentence at the end thereof:
"Notwithstanding the foregoing, Lender will not make any Revolving
Credit Advances to Borrowers pursuant to any such written notice
unless Lender has also received the most recent Borrowing Base
Certificate required under Section 9 hereof."
2.4 Section 5 (a) (viii) of the Loan Agreement is hereby amended in
its entirety to read as follows:
"On the Amendment No. 9 Effective Date, Borrowing Agent Shall inform
Lender whether the outstanding Revolving Credit Advances will be
deemed LIBOR Rate Loans or Domestic Rate Loans. All Revolving Credit
Advances made thereafter shall then bear interest at the same
Contract Rate in effect for all Revolving Credit Advances
outstanding on the Amendment No. 9 Effective Date until Borrowing
Agent elects to convert such Loans in the manner specified herein.
Any conversion shall be elected by Borrowing Agent by notifying
Lender within three (3) Business Days prior to the beginning of any
month, by telephone, with written confirmation promptly delivered to
Lender thereafter."
2.5 Section 5 (b) (ii) of the Loan Agreement is hereby amended by
inserting the following language at the end thereof:
"provided, however, that absent the occurrence of an Adverse
Performance Event (a) no more than one (1) such collateral
monitoring (exclusive of one slow-moving inventory audit performed
by or on behalf of Lender in each fiscal year) shall be performed by
Lender in any consecutive one hundred and eighty (180) day period
and (b) such collateral monitoring fees (other than collateral
monitoring fees incurred by or on behalf of Lender in connection
with slow moving inventory audits performed by or on behalf of
Lender) shall not exceed $18,000 in any calendar year.
2.6 Section 5 (b) (iii) is hereby amended by inserting the following
language at the end thereof:
"provided, however, that absent the occurrence of an Adverse
Performance Event, the collateral evaluation fee shall not exceed
$500 per month."
2.7 Section 9 of the Loan Agreement is hereby amended by inserting
the following sentences at the end thereof:
"Prior to the fifteenth day of each month, Borrowers shall deliver
to Lender a Borrowing Base Certificate as of the last day of the
prior month. The Borrowing Base Certificate shall replace the daily
reporting requirements in existence prior to the Amendment No. 9
Effective Date, provided, however, that the daily reporting
requirements shall continue until Borrowers deliver to Lender the
initial Borrowing Base Certificate, and provided, further, that
following the occurrence of an Adverse Performance Event Lender
shall have the right to impose daily reporting requirements upon
Borrowers."
2.8 Section 17 of the Loan Agreement is hereby amended in its
entirety to read as follows:
17. Term of Agreement. This Agreement shall continue in full force
and effect until the expiration of the Term. Borrowing Agent may
terminate this Agreement at any time upon ninety (90) days' prior
written notice ("Termination Date") upon payment in full of the
Obligations; provided, that if Borrowers voluntarily prepay the
Loans in full prior to the expiration of the Term, Borrowers shall
pay to Lender at the time of such prepayment, an early termination
fee in an amount equal to $150,000 if the Loans are prepaid in full
on or prior to June 20, 1998 and $125,000 if the Loans are prepaid
in full on or after June 21, 1998 and prior to the end of the term.
Notwithstanding the foregoing, in the event that any such prepayment
occurs as a result of a refinance of the obligations with The Bank
of New York's community or corporate lending departments, then the
early termination fee shall be $75,000 if the Loans are prepaid in
full on or prior to June 20, 1998 and $62,500 if the Loans are
prepaid in full on or after June 21, 1998 and prior to the end of
the Term.
2.9 Exhibit 9 is hereby added to the Loan Agreement in substantially
the form of Exhibit 9 to this Agreement.
3. Conditions of Effectiveness. This Amendment shall become
effective when Lender shall have received four (4) copies of this Amendment
executed by each Borrower and consented and agreed to by each of Xxxxx Xxxxxxx,
Xxxxx Industries, Ltd. and General Bearing and Hyatt as guarantors and World
Machinery Company as subordinated lender.
4. Representations and Warranties. Each Borrower hereby represents
and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of each Borrower and
are enforceable against each Borrower in accordance with their
respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower
hereby reaffirms all covenants, representations and warranties made
in the Loan Agreement to the extent the same are not amended hereby
and agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this
Amendment.
(c) No Event of Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with
respect to the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2, hereof, each reference in
the Loan Agreement to "this Agreement," hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Lender, nor
constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which taken together shall constitute one and the same agreement. Any
signature delivered by a party by facsimile transmission shall be deemed to be
an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first written above.
GENERAL BEARING CORPORATION
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
HYATT RAILWAY PRODUCTS CORP.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
SIGNATURES CONTINUED ON NEXT PAGE
BNY FINANCIAL CORPORATION
(successor-in-interest to
The Bank of New York Commercial Corporation)
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
CONSENTED AND AGREED TO:
FISCO INDUSTRIES, LTD.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
GENERAL BEARING CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
HYATT RAILWAY PRODUCTS CORP.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
__________________________________________
Xxxxx Xxxxxxx, Limited Guarantor
WORLD MACHINERY COMPANY,
as subordinated lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
