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EXHIBIT 4.7
-----------
AMENDMENT NO. 1 TO CREDIT AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 1 ("Amendment") dated as of January 12, 1995,
to that certain Credit Agreement by and among XXXXXXX & XXXXX, INC. and its
subsidiaries listed on the signature pages hereof ("Borrowers"), BANK ONE,
DAYTON, N.A. and NATIONAL CITY BANK, COLUMBUS as Banks ("Banks") and BANK ONE,
DAYTON, N.A. as agent for the Banks ("Agent") dated as of June 24, 1994 (the
"Agreement").
WHEREAS, Borrowers, Banks and Agent have agreed to
amend the Agreement on the terms and subject to the conditions
set forth herein, for the purpose of increasing the amount of
letters of credit that can be outstanding.
NOW, THEREFORE, intending to be legally bound the parties hereto
agree as follows:
A. Capitalized terms used and not otherwise defined herein are
used with the meaning set forth in the Agreement.
B. The definition of Letter of Credit Commitment in Exhibit 1.1
to the Agreement is hereby amended and restated in its entirety as follows:
"Letter of Credit Commitment" is Fifteen Million
($15,000,000) Dollars.
H. This Amendment shall become effective when it has been
executed by Agent, Banks and Borrowers. Borrowers shall be responsible for all
fees and expenses of Bank's counsel incurred in the preparation, negotiation
and execution of this Amendment.
I. Except as expressly modified hereby, the Agreement remains
unaltered and in full force and effect. This Amendment shall be considered an
integral part of the Agreement, and all references to the Agreement in the
Agreement itself or any document referring thereto shall, on and after the date
of execution of this Amendment, be deemed to be references to the Agreement as
amended by this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first written above.
XXXXXXX & XXXXX, INC.
By____________________________
Its___________________________
2
CHEMINEER, INC.
By____________________________
Its___________________________
PFAUDLER (UNITED STATES), INC.
By____________________________
Its___________________________
EDLON PRODUCTS, INC.
By____________________________
Its___________________________
BANK ONE, DAYTON, N.A., as Agent
By____________________________
Its___________________________
NATIONAL CITY BANK, COLUMBUS
By____________________________
Its___________________________
BANK ONE, DAYTON, N.A., as a Bank
By____________________________
Its___________________________
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AMENDMENT NO. 2 TO CREDIT AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 2 ("Amendment") dated as of February 28,
1995, to that certain Credit Agreement by and among XXXXXXX & XXXXX, INC. and
its subsidiaries listed on the signature pages hereof ("Borrowers"), BANK ONE,
DAYTON, N.A. and NATIONAL CITY BANK, COLUMBUS as Banks ("Banks") and BANK ONE,
DAYTON, N.A. as agent for the Banks ("Agent") dated as of June 24, 1994, as
amended January 12, 1995 (the "Agreement").
WHEREAS, Borrowers, Banks and Agent have agreed to
amend the Agreement on the terms and subject to the conditions
set forth herein, for the purpose of modifying the investments
Borrower and its Subsidiaries may make.
NOW, THEREFORE, intending to be legally bound the parties hereto
agree as follows:
A. Capitalized terms used and not otherwise defined herein are
used with the meaning set forth in the Agreement.
B. Subparagraph 8.9(d) shall be modified and amended to read as
follows:
(d) Investments by a Borrower or Subsidiary, in an
aggregate principal amount not to exceed Twelve Million Dollars
($12,000,000) at any time outstanding, in cash equivalents and
other investment grade securities having a maturity of not more
than one hundred eighty (180) days.
H. This Amendment shall become effective when it has been
executed by Agent, Banks and Borrowers. Borrowers shall be responsible for all
fees and expenses of Bank's counsel incurred in the preparation, negotiation
and execution of this Amendment.
I. Except as expressly modified hereby, the Agreement remains
unaltered and in full force and effect. This Amendment shall be considered an
integral part of the Agreement, and all references to the Agreement in the
Agreement itself or any document referring thereto shall, on and after the date
of execution of this Amendment, be deemed to be references to the Agreement as
amended by this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first written above.
XXXXXXX & XXXXX, INC.
By____________________________
Its___________________________
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CHEMINEER, INC.
By____________________________
Its___________________________
PFAUDLER (UNITED STATES), INC.
By____________________________
Its___________________________
EDLON PRODUCTS, INC.
By____________________________
Its___________________________
BANK ONE, DAYTON, N.A., as
Agent
By____________________________
Its___________________________
NATIONAL CITY BANK, COLUMBUS
By____________________________
Its___________________________
BANK ONE, DAYTON, N.A., as a
Bank
By____________________________
Its___________________________
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AMENDMENT NO. 3 TO CREDIT AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 3 ("Amendment") dated as of February 28,
1995, to that certain Credit Agreement by and among XXXXXXX & XXXXX, INC.
("Parent") and its subsidiaries listed on the signature pages hereof
("Borrowers"), BANK ONE, DAYTON, N.A. and NATIONAL CITY BANK, COLUMBUS as Banks
("Banks") and BANK ONE, DAYTON, N.A. as agent for the Banks ("Agent") dated as
of June 24, 1994, as amended January 12, 1995, and February 28, 1995 (the
"Credit Agreement").
WHEREAS, Borrowers, Banks and Agent have agreed to
amend the Agreement on the terms and subject to the conditions
set forth herein, for the purpose of allowing Borrower and its
Subsidiaries to proceed with the transactions described on
Exhibit A attached hereto (the "Transactions").
NOW, THEREFORE, intending to be legally bound the parties hereto
agree as follows:
A. CONSENT TO TRANSACTION. Under the terms of the
Credit Agreement, consent of the Banks to the Transactions is
required pursuant to the terms of the following covenants:
1. Section 8.3, MERGER AND ACQUISITIONS, and Section
8.9, INVESTMENTS IN OTHER PERSON, as those covenants relate to
the acquisition of assets and stock.
2. Section 8.9, INVESTMENTS IN OTHER PERSON, as that
covenant relates to investment of cash by Pfaudler in its new
subsidiary and investment by the new subsidiary in a marketing
joint venture; provided, however, that these investments shall
not be included in determining whether Borrower has exceeded the
aggregate level of investments of $3,000,000 as permitted under
Section 8.9(b) or $10,000,000 as permitted under Section 8.9(f).
3. Section 8.1, BORROWING, and Section 8.7,
LIABILITIES OF SUBSIDIARIES, as those covenants relate to
issuance of notes by the new subsidiary of Pfaudler, the foreign
subsidiary, and Pfaudler itself.
4. Section 7.12,TRANSACTIONS WITH AFFILIATES,
Section 8.5, CONTINGENT LIABILITIES, and Section 8.9,
INVESTMENTS IN OTHER PERSON, as those covenants relate to the
guarantee of various notes on a subordinated basis by Parent;
provided, that the amounts of the guarantees permitted hereunder
shall not count towards determining whether Parent has exceeded
the permitted amount of investments under these covenants.
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The Banks hereby consent to the Transactions and
acknowledge that the Transactions shall not constitute a
violation of the above-referenced covenants.
B. CONDITIONS TO CLOSING. The effectiveness of the
Banks' consent hereunder shall be conditioned upon Borrowers
delivering to the Agent the following documents, in form and
substance satisfactory to the Banks:
1. Guaranty Agreements from all new Subsidiaries of
Borrowers incorporated in any state of the United States (the
"Domestic Subsidiaries").
2. Properly executed security agreements from all
new Domestic Subsidiaries of the Borrowers formed or acquired
since June 24, 1994 ("New Domestic Subsidiaries").
3. Financing statements, executed by all New
Domestic Subsidiaries, sufficient to perfect liens in all assets
of such Domestic Subsidiaries.
4. Certified copy of the resolution of the Board of
Directors of each New Domestic Subsidiary authorizing the
execution and delivery of the guarantees and the security
agreements by such subsidiary.
5. Certified copy of the resolution of the Boards of
Directors of the Borrowers authorizing the execution and
delivery of this amendment and the assumption of all other
undertakings provided for herein.
6. Copies of all Guarantees executed by Parent in
connection with the Transactions, certified by Parent to be true
and complete copies and confirming that the indebtedness of
Parent under the Guarantees is subordinate to the indebtedness
of Parent to the Banks.
7. Opinion from counsel for the Borrowers in form
and substance satisfactory to the Agent.
8. Borrowers shall have paid all expenses incurred
by the Agent and the Banks in connection with this transaction,
including attorneys' fees and other costs in negotiation,
preparation and execution of this Amendment.
9. Such other documents as the Agent may reasonably
request.
C. REPRESENTATIONS AND WARRANTIES. In order to induce
the Banks to enter into this Amendment, the Borrowers hereby
make and restate in their entirety all of the
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representations and warranties set forth in Section 6 of the
Credit Agreement (except for Section 6.26), which
representations and warranties are true in all material respects
as of the date of this Amendment and shall survive the execution
and delivery of this Amendment. Borrowers further
specifically represent and warrant that:
1. The following subsidiaries should be added to the
list of subsidiaries contained in Exhibit 6.1 to the Credit
Agreement:
Registered
Owner/
Jurisdiction of Outstanding Percentage
Name Type Organization Shares Owned
---- ---- ------------ ---------- -------------
Glasteel Corporation Delaware Pfaudler/All
Parts &
Services, Inc.
Xxxxxx Corporation England Chemical Reactor
Process Equipment, Ltd. Services, Ltd./All
Universal Glasteel Partnership Ohio N/A Glasteel Parts and
Equipment Services, Inc./50%
2. Glasteel Parts and Services, Inc., which is
acquiring the assets of Pharaoh Corp. in the Transactions, is
not acquiring any Patents (as defined in the Collateral
Assignment of Patents dated June 30, 1994, between Xxxxxxx &
Xxxxx, Inc. and the Agent), or any trademarks (as defined in the
Grant of Security Interest in Trademarks dated June 30, 1994,
between Xxxxxxx & Xxxxx, Inc. and Agent).
D. FURTHER AGREEMENT.
1. Defined terms used in this Amendment shall have
the meanings herein specified or specified in the Credit
Agreement.
2. The execution and delivery of this Amendment is
not intended to discharge any obligation of the Borrowers due to
the Banks under the Credit Agreement.
3. There is no novation by the execution and
delivery of this Amendment.
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4. All the terms and conditions contained in the
Credit Agreement and all documents executed in accordance
therewith, except as expressly modified herein, shall continue
unchanged and remain in full force and effect.
5. This Amendment shall become effective when it has
been executed by Agent, Banks and Borrowers.
6. This Amendment shall be considered an integral
part of the Credit Agreement, and all references to the Credit
Agreement in the Credit Agreement itself or any document
referring thereto shall, on and after the date of execution of
this Amendment, be deemed to be references to the Credit
Agreement as amended by this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first written above.
XXXXXXX & XXXXX, INC.
By____________________________
Its___________________________
CHEMINEER, INC.
By____________________________
Its___________________________
PFAUDLER, INC.,
(formerly Pfaudler (United
States), Inc.)
By____________________________
Its___________________________
EDLON PRODUCTS, INC.
By____________________________
Its___________________________
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BANK ONE, DAYTON, N.A., as
Agent
By____________________________
Its___________________________
NATIONAL CITY BANK, COLUMBUS
By____________________________
Its___________________________
BANK ONE, DAYTON, N.A., as a
Bank
By____________________________
Its___________________________
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AMENDMENT NO. 4 TO CREDIT AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 4 ("Amendment") dated as of April 10, 1995,
to that certain Credit Agreement by and among XXXXXXX & XXXXX, INC. ("Parent")
and its subsidiaries listed on the signature pages hereof ("Borrowers"), BANK
ONE, DAYTON, N.A. and NATIONAL CITY BANK, COLUMBUS ("Banks"), and BANK ONE,
DAYTON, N.A. as agent for the Banks ("Agent"), dated as of June 24, 1994, as
amended January 12, 1995, and February 28, 1995 (the "Credit Agreement").
WHEREAS, Banks have agreed to increase the amount of
Revolving Credit to be made available to the Borrowers under the
Credit Agreement in order to enable Borrowers to retire the
Senior Subordinated Extendible Reset Note of Xxxxxxx & Xxxxx,
Inc. issued to Eagle Industrial Products Corporation in the
aggregate principal amount of $25,000,00; and
WHEREAS, in conjunction with such increase in the
amount of Revolving Credit the parties have agreed to additional
and/or modified terms and conditions in the Credit Agreement;
NOW, THEREFORE, intending to be legally bound, the parties
hereto agree as follows:
A. CAPITALIZED TERMS. Capitalized terms used and not otherwise
defined herein are used with the meaning set forth in the Credit
Agreement.
B. AMENDMENT TO SECTION 2.1 OF THE CREDIT AGREEMENT. Section
21.(b) shall be modified and amended in its entirety to read as
follows:
Bank Commitment Pro Rata Share
---- ---------- --------------
Bank One, Dayton, N.A. $29,000,000 58%
National City Bank, Columbus $21,000,000 42%
Total Revolving Credit
Commitment $50,000,000 100%
The total Revolving Credit Commitment shall be reduced to the
amounts hereinafter set forth on the dates indicated:
Total Revolving Credit
Date of Reduction Commitment Reduced to
---------------------
March 1, 1996 $48,000,000
March 1, 1997 $45,000,000
March 1, 1998 $41,000,000
March 1, 1999 $36,000,000
March 1, 2000 $35,000,000
C. AMENDMENT TO SECTION 7.16 - MINIMUM TANGIBLE CAPITAL
BASE. Section 7.16 shall be modified and amended in its
entirety to provide as follows:
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At the end of the following fiscal quarters
of Parent, Borrowers and Subsidiaries shall maintain
a minimum tangible Capital Base on a Consolidated
basis of at least the minimum amounts hereinafter set
forth. For the purposes of Compliance with this
covenant, the amounts shown in the adjustment Amount
column shall be added to actual Tangible Capital Base
and provided that the sum thereof shall be equal to
or greater than the Minimum Amount, the requirements
of this covenant shall be deemed to have been met.
Fiscal Quarters Ending Minimum Amount Adjustment Amount
---------------------- -------------- -----------------
Prior to August 31, 1996 $12,000,000 $15,000,000
As of August 31, 1996 $21,000,000 $13,000,000
through May 31, 1997
As of August 31, 1997 $30,000,000 $10,000,000
through May 31, 1998
As of August 31, 1998 $39,000,000 $ 6,000,000
through May 31, 1999
As of August 31, 1999 $48,000,000 $ 1,000,000
through May 31, 2000
As of August 31, 2000 $57,000,000 $ 0
through May 31, 2001
As of August 31, 2001 $66,000,000 $ 0
and thereafter
D. AMENDMENT TO SECTION 7.17 - LEVERAGE RATIO. Section 7.17
shall be modified and amended in its entirety to provide as follows:
At the end of each fiscal quarter of Parent during
the following fiscal years, the ratio of the outstanding
indebtedness of Borrowers and Subsidiaries (but excluding
liabilities for undrawn Letters of Credit) to the Tangible
Capital Base of Borrowers and Subsidiaries, all on a
Consolidated basis, shall not exceed the following:
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
Prior to August 31, 1996 15.50:1
As of August 31, 1996 9.00:1
through May 31, 1997
As of August 31, 1997 5.85:1
through May 31, 1998
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As of August 31, 1998 4.50:1
through May 31, 1999
As of August 31, 1999 3.75:1
through May 31, 2000
As of August 31, 2000 3.00:1
and thereafter
E. AMENDMENT TO SECTION 7.18 - NET WORKING CAPITAL. Section 7.18
shall be modified and amended in its entirety to provide as follows:
At the end of each fiscal quarter of Parent, the
Working Capital of Borrowers and Subsidiaries on a
Consolidated basis shall be at least $35,000,000.
F. AMENDMENT TO SECTION 7.19 - INTEREST COVERAGE RATIO. Section 7.19
shall be modified and amended in its entirety to provide as follows:
At the end of each of the following fiscal quarters
of Parent, Borrowers and Subsidiaries shall maintain, on a
Consolidated basis, at least the following multiples of (a)
income before taxes and before interest expense paid or
scheduled to be paid during the four fiscal quarters ending
with such fiscal quarter to (b) interest expense paid or
scheduled to be paid during such fiscal quarters (the
"Interest Coverage Ratio"):
(a) Each fiscal quarter ending prior to or on May 31,
1996: 2.20:1
(b) Each fiscal quarter ending after May 31, 1996 but prior
to or on May 31, 1997: 2.50:1
(c) Each fiscal quarter ending after May 31, 1997 but prior
to or on May 31, 1998: 2.75:1
(d) Each fiscal quarter ending after May 31, 1998 but prior
to or on May 31, 1999: 3.0:1
(e) Each fiscal quarter ending after May 31, 1999 but prior
or on May 31, 2000: 3.25:1
(f) Each fiscal quarter ending after May 31, 2000: 4.0:1
G. AMENDMENT TO SECTION 8.1 - BORROWING. Section 8.1 shall be
modified and amended in its entirety to provide as follows:
Except with the prior written consent of Banks, no
Borrower shall create, incur, assume or suffer to exist
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any liability for Funded Indebtedness, or permit any
Subsidiaries so to do except (i) Funded Indebtedness due
hereunder and under the Notes to Banks, (ii) the Subordinated
Notes, (iii) Funded Indebtedness reflected on the Financial
Statements, (iv) Funded Indebtedness of Pfaudler-Werk, GMBH
that is not guaranteed by a Borrower or a Subsidiary and (v)
outside of the U.S.A. overdraft facilities not exceeding
$5,000,000 in the aggregate; provided that such overdraft
facilities shall be paid down to zero for at least one day
during each 180-day period calculated commencing with the date
of this Amendment and provided further that such overdraft
facilities must be unsecured unless otherwise agreed to in
writing by Banks.
H. AMENDMENT TO SECTION 8.15 OF THE CREDIT AGREEMENT. Section 8.15
shall be amended and modified in its entirety to read as follows:
(a) "No Borrower shall engage, or permit any of its
Subsidiaries to engage, in purchases or sales of commodity or currency
options, futures, contracts, swap transactions or other similar
hedging transactions including such as may be required by Section 4.11
hereof, and including a Borrower or a Subsidiary engaging in commodity
and currency optics, futures and forward transactions in the ordinary
course of its business for the purpose of hedging specific exposures
to fluctuations in currencies or commodities that such entity incurs
in the ordinary course of such entity's business (hereinafter called
the "Currency Transactions") which, when the Reserve Amount (as
hereinafter defined) with respect thereto is added to the amount of
issued and outstanding Letters of Credit, exceeds in the aggregate,
the sum of Twenty Million Dollars ($20,000,000).
(b) All such Currency Transactions entered into by Borrowers
with Agent shall also satisfy the following conditions:
(1) For purposes of this Agreement, the Reserve
Amount shall be that portion of the national amount of any
Currency Transaction which the Banks, by law or policy,
determine must be reserved against their credit risk in the
Currency Transaction. Borrowers recognize that Bank One,
Dayton, N.A. currently reserves 20% of the national amount of
any such transaction; however, the Agent shall have the right
to increase or decrease this percentage with respect to any
and all future Currency Transactions;
(2) The Reserve Amount for such Currency Transaction
shall not exceed the Unused Commitment at the time of the
transaction;
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(3) The availability of credit to Borrowers under
the Total Revolving Credit Commitment shall at all times be
reduced by the aggregate Reserve Amount for Borrower's
Currency Transactions then in effect, and each Bank's
Revolving Credit Commitment shall be deemed utilized to the
extent of such Bank's Pro Rata Share of the Reserve Amount;
(4) No Currency Transaction shall have a maturity
date more than 365 days after the date of the transaction
without the written consent of the Agent; and
(5) All conditions precedent to making a Revolving
Credit Loan have been satisfied as of the date of the Currency
Transaction.
(c) Each Bank agrees that it will participate, in accordance
with its Pro Rata Share, in any Currency Transaction entered into by
the Agent and Borrowers pursuant to the terms of this Section 8.15.
Each Bank will share in the profits and losses from trading in
Currency Transactions and in the risk of such Currency Transactions,
in accordance with the Bank's Pro Rata Share thereof.
(d) Whenever Agent enters into a Currency Transaction with
one of the Borrowers on behalf of the Banks, the Agent will send a
written confirmation of such transaction to National City Bank,
Columbus within 2 days after the date of the transaction. Each Bank
shall remain free to enter into foreign currency forward contracts and
other similar hedging transactions for its own account with one or
more of the Borrowers. If the Agent does not deliver notice to
National City Bank, Columbus as required under this subparagraph, the
transaction will be deemed to be solely for the account of Bank One,
Dayton, N.A. and will not reduce the availability of credit under the
Total Revolving Credit Commitment of the Banks.
(e) Failure by any Borrower to pay an amount due to the Agent
under a Currency Transaction shall constitute for all purposes of this
Agreement an irrevocable request by Borrowers for Revolving Credit
Loans in the amount of such obligation, bearing interest at the rate
then applicable to Revolving Credit Loans to which no LIBOR Pricing
Option applies. However, if for any reason the conditions to the
making of Revolving Credit Loans are not satisfied on the date payment
of such amount is made or if the Banks cannot make Revolving Credit
Loans for any other reason, payment by Agent of such amount shall
instead constitute, for all purposes of this Agreement, the making by
Agent of a Currency Transaction Advance in the amount of such
obligation. Currency Transaction Advances shall bear interest at the
Borrowers' Default Rate until paid and Borrowers shall repay to Agent
for the account of Agent (and
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of each Bank participating in the Currency Transaction Advance) the
outstanding amount of such Currency Transaction Advance, plus
interest, on demand.
(f) If any Currency Transactions remain outstanding on the
Termination Date, Borrowers shall deposit with Agent cash or other
liquid collateral acceptable to Agent in an amount at least equal to
the Reserve Amount of each such outstanding Currency Transaction, to
be held by Agent pursuant to a cash collateral agreement acceptable to
Agent in its discretion, until such Currency Transaction is completed,
and such collateral may be applied to reimburse Agent and Banks for
any damage resulting from Borrowers' failure to perform its
obligations under a Currency Transaction.
I. AMENDMENT TO EXHIBIT 1.1 - DEFINITIONS. The definition of Letter
of Credit Commitment in Exhibit 1.1 to the Credit Agreement hereby is
amended and restated in its entirety as follows:
"Letter of Credit Commitment" is Twenty Million
Dollars ($20,000,000).
J. FEE FOR INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT. At the
closing upon this Amendment, Borrowers shall pay to Agent for the PRO
RATA accounts of the Banks (based upon each Bank's Pro Rata share) a
non-refundable fee equal to .625% of the amount of the increase in the
Total Revolving Credit Commitment.
K. OTHER FEES AND EXPENSES RELATING TO AMENDMENT TO CREDIT AGREEMENT.
Borrowers shall pay all fees and expenses of Agents and Banks,
including the fees and expenses of counsel to the Agent and each Bank
relating to the preparation of and closing upon this Amendment to
Credit Agreement.
L. CONSENT TO RETIREMENT OF SUBORDINATED NOTE AND FIRST SUPPLEMENTAL
INDENTURE. Banks hereby consent to Borrowers retirement of the Senior
Subordinated Extendible Reset Note of Xxxxxxx & Xxxxx, Inc. issued to
Eagle Industrial Products Corporation in the aggregate principal
amount of $25,000,000. Banks also consent to Xxxxxxx & Xxxxx, Inc.
entering into the First Supplemental Indenture dated as of April 10,
1995 among Xxxxxxx & Xxxxx, Inc., PNC Bank, Ohio National Association,
Eagle Service Corporation of Delaware and Eagle Industrial Products
Corporation ("First Supplemental Indenture"), which relates to the
transaction consented to in the preceding sentence. A copy of the
First Supplemental Indenture is attached as Exhibit A hereto.
M. CONDITIONS FOR CLOSING. The Banks' obligation to execute and close
upon this Amendment No. 4 shall be contingent upon delivery of the
following in form and substance satisfactory to the Agent:
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(a) The Amended Substitute Revolving Credit Notes payable to
the respective Banks;
(b) The First Amendment to Corporate Guaranty Agreement from
Glasteel Parts and Service, Inc.;
(c) Certified Copy of Corporate resolution(s) authorizing
the Borrowers to enter into the transaction contemplated herein; and
(d) Opinion of counsel for Borrowers comparable to the extent
appropriate for this transaction to Exhibit 9.11 of the Credit
Agreement.
N. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks to
enter into this Amendment No. 4, the Borrowers hereby represent and
warrant that they are in full compliance with all of their duties and
obligations under the Credit Agreement as amended hereby.
O. FURTHER AGREEMENT.
1. Defined terms used in this Amendment shall have the
meanings herein specified or specified in the Credit
Agreement.
2. The execution and delivery of this Amendment is not
intended to discharge any obligation of the Borrowers due to the Banks
under the Credit Agreement.
3. There is no novation by the execution and delivery of
this Amendment.
4. All the terms and conditions contained in the Credit
Agreement and all documents executed in accordance therewith, except
as expressly modified herein, shall continue unchanged and remain in
full force and effect.
5. This Amendment shall become effective when it has
been executed by the Agent, Banks and Borrowers.
6. This Amendment shall be considered an integral part
of the Credit Agreement, and all references to the Credit Agreement in
the Credit Agreement itself or any document referring thereto shall,
on and after the date of execution of this Amendment, be deemed to be
references to the Credit Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first above written.
XXXXXXX & XXXXX, INC.
By______________________________
Its_____________________________
CHEMINEER, INC.
By______________________________
Its_____________________________
PFAUDLER, INC.,
(formerly Pfaudler (United
States), Inc.)
By______________________________
Its_____________________________
EDLON PRODUCTS, INC.
By______________________________
Its_____________________________
BANK ONE, DAYTON, N.A., as Agent
By______________________________
Its_____________________________
NATIONAL CITY BANK, COLUMBUS
By______________________________
Its_____________________________
BANK ONE, DAYTON, N.A., as a
Bank
By______________________________
Its_____________________________
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AMENDMENT NO. 5 TO CREDIT AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 5 ("Amendment") dated as of October 23, 1995, to
that certain Credit Agreement by and among XXXXXXX & XXXXX, INC. and its
subsidiaries listed on the signature pages hereof ("Borrowers"), BANK ONE,
DAYTON, N.A. and NATIONAL CITY BANK, COLUMBUS as Banks ("Banks") and BANK ONE,
DAYTON, N.A. as agent for the Banks ("Agent") dated as of June 24, 1994 (the
"Credit Agreement").
WHEREAS, as a part of the consideration for its acquisition of
all of the capital stock of the other Borrowers in 1994, Xxxxxxx &
Xxxxx, Inc. issued 2,000,000 stock appreciation rights ("SAR's")
pursuant to a SAR and Registration Rights Agreement dated as of June
30, 1994; and
WHEREAS, the holders of 1,850,000 of the SAR's desire to
exercise such SAR's, and Xxxxxxx & Xxxxx, Inc. desires to make the
required payment to such holders in cash, in accordance with the
Agreement in the form attached hereto between Xxxxxxx & Xxxxx, Inc.
and Eagle Industries, Inc. and a separate agreement between Xxxxxxx &
Xxxxx, Inc. and Nationsbanc Capital Markets, Inc. (together the "SAR
Exercise Agreements").
NOW, THEREFORE, intending to be legally bound the parties
hereto agree as follows:
A. AMENDMENT TO SECTION 7.16 - MINIMUM TANGIBLE CAPITAL BASE.
Section 7.16 shall be modified and amended in its entirety to provide
as follows:
At the end of the following fiscal quarters of
Parent, Borrowers and Subsidiaries shall maintain a minimum
Tangible Capital Base on a consolidated basis of at least the
minimum amounts hereinafter set forth.
Fiscal Quarters
Ending Minimum Amount
--------------- --------------
Prior to 8-31-96 $ 12,000,000
As of 8-31-96
through 5-31-97 $ 21,000,000
As of 8-31-97
through 5-31-98 $ 30,000,000
As of 8-31-98
through 5-31-99 $ 39,000,000
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Fiscal Quarters
Ending Minimum Amount
--------------- --------------
As of 8-31-99
through 5-31-2000 $ 48,000,000
As of 8-31-2000
through 5-31-2001 $ 57,000,000
As of 8-31-2001
and thereafter $ 66,000,000
B. AMENDMENT TO SECTION 7.18 - NET WORKING CAPITAL. Section 7.18
shall be modified and amended in its entirety to provide as follows:
At the end of each fiscal quarter of Parent, the
Working Capital of Borrowers and Subsidiaries on a
Consolidated basis shall be at least $30,000,000.
C. AMENDMENT TO DEFINITION OF "TANGIBLE CAPITAL BASE". The
definition of "Tangible Capital Base" set forth in Exhibit 1.1 to the
Credit Agreement hereby is amended in its entirety to read as follows:
"TANGIBLE CAPITAL BASE" means the sum of (i) the
Tangible Net Worth of Borrowers, plus (ii) the amount of all
Subordinated Indebtedness, excluding any discount of the
principal amount of the Subordinated Notes, plus (iii) during
the following periods, the amounts indicated below:
Period Additional Amount
------ -----------------
Prior to 8-31-96 $32,550,000
As of 8-31-96
through 5-31-97 $30,500,000
As of 8-31-97
through 5-31-98 $10,000,000
As of 8-31-98
through 5-31-99 $ 6,000,000
As of 8-31-99
through 5-31-2000 $ 1,000,000
Thereafter $ 0
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D. AMENDMENT TO SECTION 7.21 - FIXED CHARGE COVERAGE RATIO
LIMITATION. Section 7.21 shall be modified and amended to restate
clause (b) in its entirety as follows:
7.21 FIXED CHARGE COVERAGE RATIO LIMITATION. Each time the
Consolidated Fixed Charge Coverage Ratio for a period of four
fiscal quarters is less than (a) 2.50:1 for four-quarter
periods ending prior to or on August 31, 1995, or (b) 3.50:1
for four-quarter periods ending after August 31, 1995, then
Borrower may not receive any Revolving Loans until the Fixed
Charge Coverage Ratio increases to an amount equal to or
greater than the minimum ratio listed in clause (a) or (b)
above, whichever is applicable by its terms. With respect to
each applicable four-quarter period, this prohibition on
Revolving Loans shall become effective upon the date of
receipt by Agent of the financial statements of Borrowers for
the relevant period, and shall continue until receipt by Agent
of financial statements for a later relevant period
demonstrating that Borrowers may again receive Revolving Loans
pursuant to this Section.
E. OTHER FEES AND EXPENSES RELATING TO AMENDMENT TO CREDIT
AGREEMENT. Borrowers shall pay all fees and expenses of Agent and
Banks, including the fees and expenses of counsel to the Agent and
each Bank relating to the preparation of and closing upon this
Amendment to Credit Agreement.
F. CONSENT TO PAYMENT PURSUANT TO SAR EXERCISE AGREEMENTS. Banks
hereby consent to the payment by Borrowers of up to $18,037,500
pursuant to the SAR Exercise Agreements.
G. CONDITIONS FOR CLOSING. The Banks' obligation to execute and
close upon this Amendment No. 5 shall be contingent upon delivery of a
certified copy of Corporate Resolution(s) authorizing the Borrowers to
enter into the transaction contemplated herein.
H. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks
to enter into this Amendment No. 5, the Borrowers hereby represent and
warrant that they are in full compliance with all of their duties and
obligations under the Credit Agreement as amended hereby.
I. FURTHER AGREEMENT.
1. Defined terms used in this Agreement shall have the
meanings herein specified or specified in the Credit Agreement.
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2. The execution and delivery of this Amendment is not
intended to discharge any obligation of the Borrowers due to the Banks
under the Credit Agreement.
3. There is no novation by the execution and delivery of this
Amendment.
4. All the terms and conditions contained in the Credit
Agreement and all documents executed in accordance therewith, except
as expressly modified herein, shall continue unchanged and remain in
full force and effect.
5. This Amendment shall become effective when it has been
executed by Agent, Banks and Borrowers.
6. This Amendment shall be considered an integral part of the
Credit Agreement, and all references to the Credit Agreement in the
Credit Agreement itself or any document referring thereto shall, on
and after the date of execution of this Amendment, be deemed to be
references to the Credit Agreement as amended by this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first written above.
XXXXXXX & XXXXX, INC.
By:
---------------------------
Its
---------------------------
CHEMINEER, INC.
By:
---------------------------
Its
---------------------------
PFAUDLER, INC.,
(formerly Pfaudler (United
States), Inc.)
By:
---------------------------
Its
---------------------------
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EDLON, INC.
By:___________________________
Its___________________________
BANK ONE, DAYTON, N.A., as Agent
By:___________________________
Its___________________________
NATIONAL CITY BANK, COLUMBUS
By:___________________________
Its___________________________
BANK ONE, DAYTON, N.A., as a
Bank
By:___________________________
Its___________________________
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