AMENDMENT NO. 4
TO
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 ("Amendment") is entered into as of
August 2, 1996, by and among BRIDGEPORT MACHINES, INC. ("BMI"), BRIDGEPORT
MACHINES LIMITED ("BML") and BRIDGEPORT MACHINES GmbH ("BMG") (BMI, BML and BMG
each, a "Borrower" and jointly and severally, the "Borrowers"); IBJ XXXXXXXX
BANK & TRUST COMPANY ("IBJS"), GENERAL ELECTRIC CAPITAL CORPORATION ("GECC")
(IBJS and GECC each, a "Lender" and jointly and severally, the "Lenders"); and
IBJS, as agent for the Lenders (in such capacity, the "Agent").
BACKGROUND
BMI, BML, Lenders and Agent are parties to an Amended and
Restated Revolving Credit, Term Loan and Security Agreement, dated as of
December 23, 1994, as amended by Amendment No. 1 to Amended and Restated
Revolving Credit, Term Loan and Security Agreement, dated as of March 31, 1995,
Consent and Amendment No. 2 to Amended and Restated Revolving Credit, Term Loan
and Security Agreement dated as of May 31, 1995, an Amended and Restated Consent
and Amendment No. 2 to Amended and Restated Revolving Credit, Term Loan and
Security Agreement dated as of June 28, 1995 and an Amendment No. 3 to Amended
and Restated Revolving Credit, Term Loan and Security Agreement dated as of
November 30, 1995 (as same may be further amended, supplemented or otherwise
modified from time to time, the "Loan Agreement"), pursuant to which Lenders
provide BMI and BML with certain financial accommodations.
BMI and BML have requested that Lenders add BMG as a Borrower
and provide BMG with a Term Loan of Seven Million Three Hundred Seventy Five
Thousand Deutschmarks and Lenders are 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 Lenders, 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 meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below:
(a) The following definitions are hereby added to Section 1.2 of
the Loan Agreement in appropriate alphabetical order:
"BMG Term Loan" shall mean the term loan made by Lenders to BMG on the
effective date of the Fourth Amendment in the original principal amount of Seven
Million Three Hundred Seventy Five Thousand Deutschmarks.
"Borrowing Agent" shall have the meaning given to it in Section 15.1
hereof.
"Deutschmark" shall mean lawful money of the Republic of Germany.
"Deutschmark Loans" shall mean the BMG Term Loan and any other
financial accommodation that may in the future be provided to BMG in
Deutschmarks.
"Fixed Rate" shall mean an interest rate per annum equal to 7.345%.
"Fixed Rate Loan" shall mean any Loan that bears interest at the Fixed
Rate.
"Fourth Amendment" shall mean Amendment No. 4 to Amended and Restated
Revolving Credit, Term Loan and Security Agreement dated as of August 2, 1996
among Borrowers, Lenders and Agent.
"Fourth Amendment Effective Date" shall mean August 2, 1996 or such
other date on which the conditions set forth in Section 4 of the Fourth
Amendment shall have been satisfied in the reasonable opinion of the Lenders.
(b) The following definitions in Section 1.2 of the Loan Agreement
are hereby amended in their entirety to read as follows:
(i) "Eurodollar Revolving Interest Margin" for Revolving
Advances consisting of Sterling Loans and Domestic Loans shall be
two percent (2.00%).
(ii) "Eurodollar Term Loan Interest Margin" for Eurodollar
Rate Domestic Term Loans and Eurodollar Rate U.K. Term Loans shall
be two and one quarter percent (2.25%).
(iii) "Loans" shall mean, jointly and severally, Domestic
Loans, Sterling Loans and the Deutschmark Loan.
(iv) "Term Loans" shall mean the BMI Term Loan, BML Term Loan,
Additional BMI Term Loan, Additional BML Term Loan and BMG Term
Loan.
(c) The definition of "Dollar Equivalent" is hereby amended by
adding "or Deutschmark" after "Sterling" wherever "Sterling" appears.
(d) The definition "GAAP" is hereby amended by deleting "in the
United States of America" and inserting "of the country of domicile of the
applicable Borrower" in its place and stead.
(e) The definition of "Guarantors" is hereby amended by adding "and
BMG" after "BML" on the second line thereof.
(f) The definition of "Interest Rate" is hereby amended by adding
the following at the end thereof: "and (f) the Fixed Rate with respect to the
BMG Loan."
(g) The definition of "Maximum Loan Amount" is hereby amended by
deleting "Forty-Five Million Seven Hundred Thousand Dollars ($45,700,000)" and
inserting "Forty Nine Million Five Hundred Eighty Three Thousand Three Hundred
Thirty Six Dollars ($49,583,336.00)" in its place and stead.
(h) The definition of "Sterling Equivalent" is hereby amended by
adding "or Deutschmark Amount" after "Dollar Amount" in the third line thereof
and by adding "or Deutschmark" after "U.S. Dollars" in the fifth line thereof.
(i) All references to "each Borrower", "any Borrower", "Borrowers"
or "Borrowers'" in Sections 2.2(f), 4.2, 4.3, 4.4, 4.5, 4.6, 4.9 (second and
third sentence only), 4.11, 4.12, 4.15, 4.16, 4.17, 5.5(b) and 9.2 of the Loan
Agreement and/or in the definitions of Collateral are hereby amended by
inserting "(other than BMG)" or "(other than BMG's)", as the case may be,
immediately after such word(s).
(j) Section 2.1(c) the Loan Agreement is hereby amended in its
entirety to provide as follows:
(c) Conversions; Several Obligations. In determining the
amount of Advances outstanding, the amount of any Sterling Loans
and Deutschmark Loans outstanding shall be converted to the Dollar
Equivalent of such amount on the date of any such determination.
The Advances may be either Deutschmark Loans to BMG, Domestic Loans
to BMI or Sterling Loans or Loans in Dollars to BML. Each Advance
made by Agent shall be made and maintained at Agent's Lending
Office for Sterling Loans, Deutschmark Loans or Domestic Loans, as
the case may be. No Borrower shall be liable for Advances to or
other Obligations of the other Borrowers except pursuant to any
Guaranty.
(k) Section 2.5(a) of the Loan Agreement is hereby amended by
deleting the last sentence thereof and inserting the following in its place and
stead:
"The Term Loans shall be due and payable as provided in
Sections 2.13 through 2.15 hereof and in the Term Loan Notes.
(l) A new Section 2.15 is hereby added to the Loan Agreement and
shall read as follows:
"2.15. BMG Term Loan. Subject to the terms and conditions set
forth in the Fourth Amendment, each Lender, severally and not
jointly, shall make available such Lender's Domestic Commitment
Percentage of the BMG Term Loan to BMG. The BMG Term Loan shall be
payable, with respect to principal, in equal consecutive monthly
installments aggregating Deutschmarks equal to one-sixtieth of the
original amount of the BMG Term Loan per month, commencing on the
last day of the month immediately following the month in which the
Fourth Amendment Effective Date occurs, except that the final
installment shall be in the amount of the balance thereof and shall
be due on the expiration of the Term, subject to acceleration upon
the occurrence of a Default or Event of Default under this
Agreement or termination of this Agreement.
(m) Section 3.7 is hereby amended by adding "or any Fixed Rate
Loan" immediately following (i) "Agreement" on the second line of subclause (a)
and (ii) "Documents" on the third line of subclause (c).
(n) Section 3.10 is hereby amended by adding "and/or BMG"
immediately following "BML" in each place it appears in such Section.
(o) Section 4.1 of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"4.1. Security Interest in the Collateral. BMI and BML each
hereby acknowledge, confirm and agree that as security for the
Obligations (including, without limitation, any Guaranty) Agent has
and shall continue to have for the ratable benefit of the Lenders a
continuing security interest and fixed and floating charges in, on
or to, all the Collateral heretofore granted, whether now owned or
existing or hereafter acquired or arising and wheresoever located.
Each Borrower, to the extent applicable, shall xxxx its books and
records as may be necessary or appropriate to evidence, protect and
perfect as may be necessary or appropriate to evidence, protect and
perfect Agent's security interest and shall cause its financial
statements to reflect such security interest.
(p) The fourth sentence of Section 4.13 of the Loan Agreement is
hereby amended in its entirety to read as follows:
"The amount of any payment by Agent under this Section 4.13
shall be, in case of BMI or BML, charged to the applicable
Borrower's account as a Revolving Advance and added to the
Obligations, until such Borrower shall furnish Agent with an
indemnity therefor (or supply Agent with evidence satisfactory to
Agent that due provision for the payment thereof has been made),
Agent may hold without interest any balance standing to such
Borrower's credit and Agent shall retain its security interest in
any and all Collateral held by Agent or, in the case of BMG, paid
by BMG to Agent immediately upon demand therefor by Agent."
(q) Section 6.6 of the Loan Agreement is hereby amended by deleting
"1.5" and inserting "1.25" in its place and stead.
(r) A new Section 6.14 to the Loan Agreement is hereby added to the
Loan Agreement to provide as follows:
"6.14 BMG Collateral. In the event that two (2) consecutive
Borrowing Base Certificates delivered by Borrowers to Agent
pursuant to Section 9.2 hereof indicate that the amount of Undrawn
Availability (for the purposes hereof, clause (a) of such
definition shall be deemed to be only "the Formula Amount" without
application of the dollar limitations set forth in Sections
2.1(a)(iii) and (iv)) shall be less than $5,000,000, then BMI and
BML shall cause BMG, within thirty (30) days thereafter, to (x)
xxxxx x xxxx and/or security interest in its Equipment to Agent for
the ratable benefit of Lenders subject only to the statutory lien
in favor of the landlord of BMG's premises in Kempten, Germany;
provided, however, BMG agrees to use its best efforts to obtain a
waiver and/or subordination of such landlord's statutory lien on
terms and conditions acceptable to Lenders, (y) execute and deliver
any and all documents and instruments requested by Agent to cause
such lien and/or security interest to be properly perfected in
accordance with the provisions of German law, all at the expense of
Borrowers; provided, that Borrowers obligations for any legal
expenses incurred by Agent and/or Lenders in connection therewith
shall not exceed $35,000.
(s) Section 15.1 of the Loan Agreement is hereby amended by
inserting "(BMI in such capacity, the "Borrowing Agent") immediately following
"hereunder" on the sixth line thereof.
(t) Section 16.1(b) is hereby amended by adding "and BMG"
immediately following "BML" in each place that it appears.
(u) The address for Xxxxxx & Berglass in Section 16.6(c) is hereby
amended to read
as follows:
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
(v) The notice parties for BMI and the telephone and telecopier
numbers for BMI are hereby amended to read as follows:
Attention: Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(w) Notwithstanding anything to the contrary contained in Sections
9.7, 9.8 or 9.9 of the Loan Agreement, all financial statements provided to
Agent pursuant to such sections shall be prepared in accordance with GAAP
applicable to BMI.
(x) Notwithstanding anything to the contrary contained in Section
16.5 of the Loan Agreement, BMG shall be obligated to indemnify Agent and each
Lender only for liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements imposed on, incurred by or
asserted against Agent or any Lender in connection with any litigation,
proceeding or investigation instituted or conducted by any Person with respect
to any transaction contemplated by, referred to in, or related to, BMG's
Obligations under the Agreement.
3. Consents. Lenders hereby consent to the payment of a dividend by BML
to BMI during the period commencing on the Fourth Amendment Effective Date and
ending on the first anniversary date thereof in an aggregate amount not to
exceed (pound)3,000,000 as long as (i) no notice of termination with regard to
this Agreement shall be outstanding, (ii) no Event of Default shall have
occurred and be continuing and (iii) after giving effect to any such payment no
Event of Default shall exist. At the written direction of BMG, the Lenders shall
advance the proceeds of the BMG Term Loan directly to BML in the Sterling
Equivalent of the BMG Term Loan.
4. Conditions Precedent. This Amendment shall become effective upon
satisfaction of the following conditions precedent:
(a) This Amendment shall have been executed by the Lenders, the
Borrowers, and the Guarantor, in four counterparts, with executed counterparts
delivered to each of the parties.
(b) Agent shall have received a Guaranty from BMI of the
Obligations of BMG, which Guaranty will be in form and substance satisfactory to
Agent.
(c) Agent shall have received opinions of counsel to BMI, BML and
BMG indicating that the transactions contemplated by this Amendment have been
properly authorized, and that the documents executed and delivered in connection
therewith are the legal, valid, and binding obligations of the respective
signatories.
(d) Agent shall have received an amendment fee of $18,750 to be
shared equally by the Lenders.
5. Representations and Warranties.
(a) Borrowers hereby represent and warrant as follows:
(i) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and
are enforceable against Borrowers in accordance with their
respective terms.
(ii) On the Fourth Amendment Effective Date, BMG shall become
a Borrower under the Loan Agreement and Borrowers hereby reaffirm
all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree
that all such covenants, representations and warranties shall be
deemed to have been remade as of the Fourth Amendment Effective
Date.
(iii) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(iv) Borrowers have no knowledge of any facts which would form
the basis for any defense, counterclaim or offset with respect to
the Loan Agreement.
(b) Lenders hereby represent and warrant that this Amendment and
the Loan Agreement, as amended hereby, constitute legal, valid and binding
obligations of Lenders and are enforceable against Lenders in accordance with
their respective terms.
6. Effect on the Loan Agreement.
(a) On the Fourth Amendment Effective Date, 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 Lenders, 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.
7. 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.
8. 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.
9. Counterparts. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed to be an original and
all of which taken together shall be deemed to constitute one and the same
agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written
above.
BRIDGEPORT MACHINES, INC.,
as Borrower and Guarantor
By: _______________________________
Name:
Title:
BRIDGEPORT MACHINES LIMITED,
as Borrower
By: _______________________________
Name:
Title:
BRIDGEPORT MACHINES, GmbH,
as Borrower
By: _______________________________
Name
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Lender and as Agent
By: _______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By: _______________________________
Name:
Title:
