EXHIBIT NUMBER 10.7
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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment")
dated as of March 1, 2001, is made by and among ELGIN NATIONAL INDUSTRIES, INC.,
a Delaware corporation (the "Borrower"), the Guarantors party to the Credit
Agreement (as defined below), the Banks party to the Credit Agreement, and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as agent for the Banks (the
"Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement, dated as of September 24, 1993, as amended and restated as of January
18, 2001, by and among the Borrower, the Guarantors, the Banks, and the Agent
(the "Credit Agreement") and desire to amend the terms thereof as set forth
herein.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Definitions.
Defined terms used herein unless otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement as amended by
this Amendment.
2. Amendment of Credit Agreement.
(a) Clause (a) Section 1 [Issuance of Letter of Credit;
Adjustment for Currency Fluctuations] of Exhibit 2.9
[Letter of Credit Provisions] is hereby amended by
adding the following at the end of such Clause (a):
"Schedule 2.9(1)(a) hereto includes that
certain irrevocable standby letter of credit dated as
of December 31, 2000 which PNC Bank issued for the
account of certain of the Loan Parties prior to the
Closing Date (the "Existing Letter of Credit"). The
Existing Letter of Credit shall be a Letter of Credit
hereunder on and after the Closing Date and the
provisions of this Exhibit 2.9 shall apply to such
Existing Letter of Credit."
(b) Clause (b) of Section 1 [Issuance of Letters of Credit;
Adjustment for Currency Fluctuations] of Exhibit 2.9
[Letter of Credit Provisions] is hereby amended and restated
as follows:
"If at any time, and solely as a result of currency
fluctuations relating to one or more Letters of Credit
denominated in a currency other than Dollars, the Letters of
Credit Outstanding exceed $10,500,000, then Borrower shall
deposit in an non-interest-bearing account with the Agent,
as cash collateral for its Obligations under the Loan
Documents, an amount such that the Letters of Credit
Outstanding minus the amount so deposited does not exceed
$10,000,000. Borrower hereby pledges to the Agent and the
Banks, and grants to the Agent and the Banks a security
interest in all such cash, deposit and account, and the
proceeds thereof, as security for such Obligations. Upon
such time as the Letters of Credit Outstanding no longer
exceed $10,000,000 and provided there exists no Potential
Default or Event of Default, the Agent shall return the cash
collateral which was provided in connection with this
Clause (b) to the Borrower."
3. Representations and Warranties. The Loan Parties hereby represent and
warrant to the Banks as follows:
A. The representations and warranties of Loan Parties contained in the
Credit Agreement are true and correct on and as of the date hereof with the same
force and effect as though made by the Loan Parties on such date, except to the
extent that any such representation or warranty expressly relates solely to a
previous date; and
B. The Loan Parties are in compliance with all terms, conditions,
provisions, and covenants contained in the Credit Agreement and the execution,
delivery, and performance of this Amendment have been duly authorized by all
necessary corporate action, require no governmental approval, and will neither
contravene, conflict with, nor result in the breach of any law, charter,
articles, or certificate of incorporation, bylaws, or agreement governing or
binding upon the Loan Parties or any of their property; and, no Event of Default
or Potential Default has occurred and is continuing or would result from the
making of this Amendment.
4. Conditions of Effectiveness of this Amendment. The effectiveness of this
Amendment is expressly conditioned upon satisfaction of each of the
following conditions precedent:
A. Fees and Expenses. The Borrower shall pay or cause to be paid to
the Agent the reasonable costs and expenses of the Agent including, without
limitation, reasonable fees of the Agent's counsel in connection with this
Amendment.
B. Legal Details; Counterparts. All legal details and proceedings in
connection with the transactions contemplated by this Amendment shall be in form
and substance satisfactory to
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the Agent, and the Agent shall have received from the Borrower and the Required
Banks all such other counterpart originals or certified or other copies of such
documents and proceedings in connection with such transactions, in form and
substance satisfactory to the Agent.
C. No Default. As of the date hereof, no Event of Default or Potential
Default has occurred and is continuing and Borrower by executing this Amendment
confirms the same and also confirms the accuracy of the representations and
warranties in Section 3 above.
5. Amendment. The Credit Agreement and other Loan Documents referred to herein
and certain of the exhibits and schedules thereto are hereby amended in
accordance with the terms hereof and any reference to the Credit Agreement or
other Loan Documents in any document, instrument, or agreement shall hereafter
mean and include the Credit Agreement or such Loan Document, including such
schedules and exhibits, as amended hereby.
6. Force and Effect. Borrower reconfirms, restates, and ratifies the Credit
Agreement and all other documents executed in connection therewith except to the
extent any such documents are expressly modified by this Amendment and each of
the Loan Parties confirms that all such documents have remained in full force
and effect since the date of their execution.
7. Governing Law. This Amendment shall be deemed to be a contract under the
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles.
8. Counterparts. This Amendment may be signed in any number of counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9. Effective Date. This Amendment shall be effective as of and shall be
dated as of the date of satisfaction of all conditions set forth in Section 4 of
this Amendment.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF and intending to be legally bound hereby, the
parties hereto have executed this Amendment as of the date first above written.
ATTEST: ELGIN NATIONAL INDUSTRIES, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X Xxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
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Title: Admin. Asst. Title: Secretary
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[Seal]
EACH GUARANTOR LISTED ON
SCHEDULE 1 HERETO
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
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Title: Admin. Asst. Title: Secretary
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SCHEDULE 1
XXXXXX CONSTRUCTION COMPANY
CENTRIFUGAL SERVICES, INC.
CLINCH RIVER CORPORATION
ENI INTERNATIONAL, LTD
ELGIN INTERNATIONAL, LTD
XXXXXX-XXXXXX FASTENERS, INC.
MINING CONTROLS, INC.
XXXXXX SCREEN AND MANUFACTURING INC.
PRECISION SCREW & BOLT, INC.
XXXXXXX & XXXXXXXX COMPANY
XXXXXXX & XXXXXXXX INTERNATIONAL, LTD
XXXXX ASSOCIATES, INC.
XXXXX INTERNATIONAL, LTD
XXXXX MACHINE COMPANY
XXXXXXXX-XXXXXXXX CONSTRUCTION COMPANY, INC.
TRANSERVICE, INC.
VANCO INTERNATIONAL, INC.
[SIGNATURE PAGE 2 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Sr. Associate Director
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[SIGNATURE PAGE 3 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
BANK OF SCOTLAND
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title:Sr. Associate Director
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[SIGNATURE PAGE 4 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
NATIONAL CITY BANK
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title:Sr. Associate Director
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SCHEDULE 2.9(1)(a)
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Standby Letter of Beneficiary Issue Date Expiry Date Currency Amount
Credit No.
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5235914PGH United Engineers 12-31-00 6-30-01 $425,872.19
International, Inc.
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