EXHIBIT 10.42
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GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
GPX CORP.
________________________________
AMENDMENT NO. 4
dated as of July 30, 1999
to
Note Agreement dated as of January 31, 1996
$25,000,000 6.45% Senior Notes, Series A, Due January 31, 2002
$50,000,000 6.76% Senior Notes, Series B, Due January 31, 2006
________________________________
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AMENDMENT NO. 4 TO NOTE AGREEMENT
THIS AMENDMENT NO. 4 TO NOTE AGREEMENT dated as of July 30, 1999,
(this "Amendment"), is entered into by and between GLOBAL INDUSTRIAL
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and GPX CORP., a
Nevada corporation ("GPX," and together with the Company, the "Co-Makers"), THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Prudential") and PRINCIPAL LIFE
INSURANCE COMPANY ("Principal")(collectively, the "Purchasers").
Recitals
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A. The Co-Makers and the Purchasers entered into a Note Agreement dated
as of January 31, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Note Agreement"), pursuant to which the Co-Makers issued and
sold to the Purchasers and the Purchasers purchased, on the terms and conditions
therein set forth, the Co-Makers' 6.45% Senior Notes, Series A, Due January 31,
2002, in the aggregate principal amount of $25,000,000, and 6.76% Senior Notes,
Series B, Due January 31, 2006 in the aggregate principal amount of $50,000,000
(the "Notes"). The Purchasers remain, collectively, the holders of 100% of the
outstanding principal amount of the Notes.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Note Agreement.
B. The Co-Makers and Chase Bank of Texas, N.A., ABN Amro Bank N.V., PNC
Bank, National Association and the other financial institutions party thereto
(collectively, the "Banks") have entered into a Credit Agreement dated as of
July 30, 1999 (as the same may be amended, modified, or supplemented from time
to time, the "Credit Agreement"), pursuant to which the Banks have agreed to
extend credit to the Co-Makers in the form of revolving credit advances not to
exceed an aggregate principal amount of $120,000,000.
C. The Company and the Restricted Subsidiaries (including GPX) that have
executed guaranties in connection with the Credit Agreement (collectively, the
"Guarantors") have executed Guaranties in respect of the Co-Makers' obligations
under the Notes.
D. The Guarantors, the Banks, and the Purchasers have executed a Sharing
Agreement dated as of August 31, 1998 as supplemented by agreement dated as of
October 2, 1998 and additional agreements dated as of July 30, 1999.
E. The Company and the Guarantors have entered into security agreements,
guaranties and pledges (the "Security Documents") in favor of Chase Bank of
Texas, National Association, as Collateral Agent for the Purchasers and the
Banks, all as identified in the Credit Agreement and in the Intercreditor
Agreement referred to below.
F. The Guarantors, the Banks, the Company and the Purchasers have
executed or will execute an Intercreditor Agreement of even date herewith (the
"Intercreditor Agreement").
G. The Co-Makers and the Purchasers desire to amend the Note Agreement in
the respects, but only in the respects, hereinafter set forth.
NOW, THEREFORE, the Co-Makers and the Purchasers, in consideration of the
foregoing and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, do hereby agree as follows:
Section 1. Amendment of the Note Agreement. The Note Agreement is hereby
amended as follows:
(a) Paragraphs 1A and 1B of the Note Agreement are amended to read in
their entirety as follows:
1A. Authorization of Issue of Series A Notes. The Co-Makers will
authorize the issue of their joint and several senior promissory notes,
Series A, in the aggregate principal amount of $25,000,000: (i) to be dated
the date of issue thereof; (ii) to mature January 31, 2002; (iii) to bear
interest on the unpaid balance thereof (A) from the date thereof through
July 31, 1999 at the rate of 6.45% per annum; from August 1, 1999 through
October 31, 1999, at the rate of 7.20%; from November 1, 1999 through
January 31, 2000, at the rate of 7.95%; from February 1, 2000 through April
30, 2000, at the rate of 8.45%; and from May 1, 2000 until the principal
thereof shall have become due and payable at the rate of 8.95% and (B) on
overdue payments at the rate specified therein, and to be substantially in
the form of Exhibit A attached hereto. The term "Series A Notes" as used
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herein shall include each such senior promissory note, Series A, delivered
pursuant to any provision of this Agreement and each such senior promissory
note delivered in substitution or exchange for any other Series A Note
pursuant to any such provision.
1B. Authorization of Issue of Series B Notes. The Co-Makers will
authorize the issue of their joint and several senior promissory notes,
Series B, in the aggregate principal amount of $50,000,000: (i) to be
dated the date of issue thereof ; (ii) to mature January 31, 2006; (iii)
to bear interest (A) on the unpaid balance thereof through July 31, 1999,
at the rate of 6.76% per annum; from August 1, 1999 through October 31,
1999, at the rate of 7.51%; from November 1, 1999 through January 31, 2000,
at the rate of 8.26%; from February 1, 2000 through April 30, 2000, at the
rate of 8.76%; and from May 1, 2000 until the principal thereof shall have
become due and payable at the rate of 9.26% and (B) on
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overdue payments at the rate specified therein, and to be substantially in
the form of Exhibit B attached hereto. The term "Series B Notes" as used
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herein shall include-each such senior promissory note, Series B, delivered
pursuant to any provision of this Agreement and each such senior promissory
note delivered in substitution or exchange for any other Series B Note
pursuant to any such provision.
Capitalized terms used herein have the meanings specified in paragraph
10. The term "Notes" as used herein shall include each Series A Note and each
Series B Note.
(b) Paragraph 4 of the Note Agreement is amended by deleting the
works "optional prepayments permitted" and inserting in their place the word
"prepayments".
(c) Paragraph 5A of the Note Agreement is amended by deleting the
word "and" found between the references to paragraphs "6G" and "6I" in the
fourth line of the text immediately following paragraph 5A(vi), and by inserting
the words "6K, 6L and (for periods ending on or after September 30, 1999) 6M"
immediately following the reference to "6I" in that line.
(d) Paragraph 6A of the Note Agreement is amended in its entirety
to read as follows:
6A. Minimum Consolidated Net Worth. The Company will at all times
maintain or cause to be maintained Consolidated Net Worth in an amount not
less than the sum of (a) $209,250,000 plus (b) 50% of net income, after
provision for income taxes, of the Company and the Restricted Subsidiaries
on a consolidated basis (without any deduction for losses) for each fiscal
quarter of the Company ended through the date of determination, beginning
with the fiscal quarter ending September 30, 1999, plus (c) 100% of the Net
Proceeds received by the Company from any issuance, sale or other
disposition of any shares of capital stock or other equity securities of
the Company of any class (or any securities convertible or exchangeable for
any such shares, or any rights, warrants, or options to subscribe for or
purchase any such shares).
(e) Paragraph 6E is amended by deleting subparagraph (viii) and
inserting in lieu of the following subparagraphs (viii), (ix) and (x):
(viii) Liens securing the Notes and the Obligations arising under
and as defined in the Credit Agreement, and the notes of the Co-Makers issued
under the Note Agreement dated October 2, 1998, between the Co-Maker and The
Prudential Insurance Company of America, and the Note Agreement dated June 30,
1998, between the Co-Maker and The Prudential Insurance Company of America and
U.S. Private Placement Fund.
(ix) Liens on assets owned by the Company within the United States,
other than assets included in the Collateral, to secure Debt of the Company or a
Subsidiary not in excess of
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$3,000,000 in the aggregate at any time outstanding provided that such Liens do
not secure any other Debt.
(x) Liens on assets located in Canada and owned by any Restricted
Subsidiary of the Company organized under the laws of Canada, to secure Debt of
the Company or a Subsidiary not in excess of C$15,000,000 in the aggregate at
any time outstanding, provided that such Liens do not secure any other Debt.
(f) Paragraph 6F is amended to read in its entirety as follows:
6F. Disposition of Assets. The Company will not and will not permit
any Restricted Subsidiary to sell, lease, assign, transfer, or otherwise
dispose of any of their respective assets (including without limitation
stock or other equity interests in any of the Subsidiaries or any of the
voting rights of any such stock or other equity interests); provided,
however, that the following dispositions shall be permitted so long as the
Company and the Restricted Subsidiaries, as applicable, receive full, fair
and reasonable consideration at the time of such disposition at least equal
to the fair market value of such asset being disposed:
(i) dispositions of inventory in the ordinary course of
business of the Company and its Restricted Subsidiaries;
(ii) the Xxxxxxx Disposition, provided that all of the
proceeds (less reasonable expenses) from the Xxxxxxx Disposition shall be
applied to repay Borrowings (as defined in the Credit Agreement) under the
Credit Agreement;
(iii) the Shred-Tech Disposition, provided that all of the
proceeds (less reasonable expenses) from the Shred-Tech Disposition shall
be applied to prepay the Notes in accordance with paragraph 4B, ratably
with repayment of Borrowings (as defined in the Credit Agreement) under the
Credit Agreement;
(iv) any other disposition of assets having a Net Book Value
not to exceed $25,000,000 in the aggregate for as long as any Note remains
outstanding, provided, that with regard to any such disposition of assets
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having a Net Book Value in excess of $5,000,000 individually or when
aggregated with all other such dispositions on or after July 30, 1999 all
of the proceeds (less reasonable expenses) from such disposition or
dispositions in excess of $5,000,000 shall be applied to prepay the Notes
in accordance with paragraph 4B, ratably with repayment of Borrowings (as
defined in the Credit Agreement) under the Credit Agreement;
(v) disposition of assets that are worn out, obsolete or no
longer used or useful in the conduct of the business of the Company and its
Restricted Subsidiaries, so long as such assets are replaced with assets of
equal or greater value; and
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(vi) disposition of assets to the Company or any wholly-owned
Restricted Subsidiary that is a Guarantor.
(g) New paragraphs 6K, 6L & 6M are added to the Note Agreement
reading in their entireties as follows:
6K. Consolidated Leverage Ratio. The Company will at all times
maintain or cause to be maintained a Consolidated Leverage Ratio of not
greater than: (i) 4.50 to 1.00 during the period from and including July
31, 1999 through September 29, 1999, (ii) 4.25 to 1.00 during the period
from and including September 30 through December 30, 1999, (iii) 3.75 to
1.00 during the period from and including December 31, 1999 through March
30, 2000, and (iv) 3.50 to 1.00 from and including March 31, 2000 and
thereafter.
6L. Consolidated Interest Coverage Ratio. The Company will at all
times maintain or cause to be maintained a Consolidated Interest Coverage
Ratio of not less than 3.50 to 1.00.
6M. Capital Expenditures. The Company will not permit the aggregate
Capital Expenditures of the Company and its Subsidiaries to exceed
$20,000,000 during any four quarter period ending on the last day of any
fiscal quarter of the Company.
(h) Paragraph 10B of the Note Agreement is amended by inserting the
following new defined terms in the appropriate alphabetical order within such
paragraph:
"Agreed Expense Reduction Amount" shall mean, with respect to the
calculation of Adjusted EBITDA for any period, expenses, not to exceed the
amounts specified on Schedule 6K for such period, that were incurred by the
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Company and its Restricted Subsidiaries prior to June 30, 1999 and were
actually deducted in arriving at EBITDA for such period but will not occur
in subsequent periods due to cost reductions related to the acquisition of
A.P. Green Industries, Inc. and its Subsidiaries.
"Adjusted EBITDA" shall mean, for each period of determination, the
sum of the following for the Company and its Restricted Subsidiaries on a
consolidated basis :
(A) EBITDA for such period, plus
(B) the Agreed Expense Reduction Amount.
"Capital Expenditures" shall mean, and for any period, all capital
expenditures as determined in accordance with GAAP and in any event shall
include, but not be limited to, all expenditures (whether paid in cash or
accrued as a liability, including the portion of Capitalized Lease
Obligations originally incurred during such period that are capitalized for
the consolidated balance sheet of the Company and its Subsidiaries) by the
Company and its
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Restricted Subsidiaries during such period for the acquisition,
construction, improvement or replacement of land, buildings, equipment or
other fixed or capital assets or leaseholds (excluding expenditures
properly chargeable to repairs or maintenance) or otherwise included in
"capital expenditures," "additions to property, plant or equipment" or
comparable items in the consolidated financial statements of the Company
and its Restricted Subsidiaries.
"Collateral" shall have the meaning specified in Section 4.01 of the
Credit Agreement, as in effect on the date hereof.
"Consolidated Interest Coverage Ratio" shall mean, as of the last day
of any fiscal quarter of the Company, the ratio of (a) Adjusted EBITDA for
the 12-month period ending on such day to (b) cash interest expense of the
Company and its Restricted Subsidiaries for the 12-month period ending on
such day.
"Consolidated Leverage Ratio" shall mean, as of the last day of any
fiscal quarter of the Company, the ratio of (a) Consolidated Funded Debt as
of such last day to (b) Adjusted EBITDA for the 12-month period ending on
such day; provided, however, that for purposes of this definition
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Consolidated Funded Debt shall not include the non-recourse Indebtedness of
Aken existing as of July 30, 1999, and Adjusted EBITDA shall not include
EBITDA of Aken or any portion of the Agreed Expense Reduction Amount
attributable to Aken.
"Credit Agreement" shall mean that certain Credit Agreement dated as
of July 30, 1999, among the Company, Chase Bank of Texas, National
Association, as administrative agent for the lenders party thereto from
time to time (the "Lenders") and the Lenders.
"EBITDA" shall mean, for each period of determination, the sum of (a)
consolidated net income of the Company and its Restricted Subsidiaries for
such period (whether positive or negative), plus, (b) each of the following
to the extent actually deducted in arriving at consolidated net income for
such period and without duplication: depreciation, amortization, taxes, and
interest expense of the Company and its Restricted Subsidiaries for such
period, minus (c) gains from the sale of fixed assets not in the ordinary
course of business, plus (d) to the extent actually deducted in arriving at
consolidated net income for such period and without duplication, losses
from the sale of fixed assets not in the ordinary course of business, minus
(e) extraordinary gains determined in accordance with GAAP, plus (f) to the
extent actually deducted in arriving at consolidated net income for such
period and without duplication, extraordinary losses determined in
accordance with GAAP, plus (g) to the extent actually deducted in arriving
at consolidated net income for such period and without duplication, noncash
charges incurred by the Borrower and its Restricted Subsidiaries in the
fiscal quarters ending September 30, 1998, December 31, 1998 and March 31,
1999 only.
"Income Taxes" shall mean federal, state, local and foreign income
taxes.
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"Xxxxxxx" shall mean the Xxxxxxx Xxxxxxxx Division of Global
Processing Systems, Inc., a Subsidiary of the Company.
"Xxxxxxx Disposition" shall mean the disposition of all or
substantially all of the assets of Xxxxxxx.
"Net Book Value" of any asset shall mean the book value of such asset,
minus depreciation of such asset.
"Net Proceeds" from any issuance, sale or other disposition of any
shares of equity securities (or any securities convertible or exchangeable
for such shares, or any rights, warrants, or options to subscribe for or
purchase any such shares) shall mean the amount equal to (a) the aggregate
gross proceeds of such issuance, sale or other disposition, less (b) the
following reasonable fees and expenses: (i) placement agent fees, (ii)
underwriting discounts and commissions, (iii) bank and other lender fees,
and (iv) legal fees and legal expenses payable by the issuer in connection
with such issuance, sale or other disposition.
"Shred-Tech" shall mean the Shred-Tech Division of Global-GIX Canada
Inc., a Subsidiary of Company.
"Shred-Tech Disposition" shall mean the disposition of all or
substantially all of the assets of Shred-Tech.
(i) Exhibits A and B, in the forms attached hereto, hereby replace
Exhibits A and B to the Note Agreement.
(j) A new Schedule 6K is added to the Note Agreement, in the form
attached hereto as Schedule 6K.
Section 2. Effective Date. This Amendment shall become effective on
the date hereof (the "Effective Date"), subject in all cases to the following
having been received by and being satisfactory to the Purchasers:
(a) duly executed counterparts of this Amendment;
(b) duly executed Notes in the forms attached to this Amendment,
executed by the Co-Makers;
(c) duly executed Guaranties on behalf of Global Processing Systems,
Inc., Corrosion Technology International, A. P. Green Industries, Inc., Xxxxxxx
Refractory Fibers, Inc., Polymer Pipe Technology, Inc., and Corrosion IP Corp.;
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(d) duly executed Security Documents, executed by the Company and the
Guarantors satisfactory to the Purchasers, creating a first priority security
interest in the collateral described therein;
(e) duly executed counterparts of the Intercreditor Agreement
executed by the Company, the Guarantors, the Banks and Chase National Bank of
Texas, National Association, as Collateral Agent for the Purchasers and the
Banks.
(f) a copy of the Credit Agreement as in effect on the Effective
Date, certified by the Co-Makers;
(g) certificate of the Secretary or Assistant Secretary of each of
the Guarantors and the Co-Makers attaching and certifying copies of(i) the
resolutions of the board of directors of such Guarantor authorizing the
execution and delivery of this Amendment; (ii) the resolutions of the board of
directors of each Co-Maker authorizing the execution, delivery, and performance
of this Amendment; and (iii) the name, title and true signature of each officer
of such Guarantor or Co-Maker, as the case may be, executing the Amendment; and
for each Guarantor identified in subsection (c) of this section, (iv) the
certificate of incorporation of such Guarantor, as the case may be, and (v) the
bylaws of such Guarantor, as the case may be.
(h) a favorable opinion of Xxxxxxxx X. Xxxx, general counsel of the
Company, counsel for the Co-Makers and the Guarantors, satisfactory to the
Purchasers and the Purchasers' special counsel and addressing such matters as
the Purchasers may request;
(i) evidence satisfactory to the Purchasers that the Purchasers'
special counsel has received its fees, charges and disbursements charged or
incurred in connection with the preparation, negotiation, execution and delivery
of this Amendment, and any other documents executed and delivered
contemporaneously herewith or therewith, to the extent such fees, charges and
disbursements are reflected in a statement of such special counsel tendered to
the Co-Makers at least one Business Day prior to the execution of this
Amendment.
Section 3. Representations and Warranties. In order to induce the
Purchasers to enter into this Amendment, each of the Co-Makers represents and
warrants as follows:
(a) Organization. The Company is a corporation duly organized and
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validly existing in good standing under the laws of the State of Delaware. GPX
is a corporation duly organized and validly existing in good standing under the
laws of the State of Nevada. Each other Guarantor is a corporation duly
organized and validly existing in good standing under the laws of the state of
its incorporation.
(b) Power and Authority. Each of the Co-Makers and each Guarantor
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has all requisite corporate power to execute, deliver and perform its
obligations under this Amendment and the Notes executed by it. The execution,
delivery and performance by the Co-Makers of this
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Amendment and the Notes and the execution and delivery by the Guarantors of this
Amendment have been duly authorized by all requisite corporate action on the
part of each of the Co-Makers or such Guarantors, as the case may be. Each of
the Co-Makers has duly executed and delivered this Amendment and the Notes, and
this Amendment and the Notes constitute legal, valid and binding obligations of
each of the Co-Makers, enforceable against the Co-Makers in accordance with
their respective terms. Each of the Guarantors has duly executed and delivered
this Amendment, and this Amendment constitutes the legal, valid and binding
obligation of such Guarantor, enforceable against it in accordance with its
terms.
(c) No Conflicts. Neither the execution and delivery of this
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Amendment or the Notes by the Co-Makers or the execution and delivery of this
Amendment by the Guarantors, nor the consummation of the transactions
contemplated hereby, nor fulfillment of nor compliance with the terms and
provisions thereof will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any security interest, lien or other
encumbrance upon any of the properties or assets of the Co-Makers or the
Guarantors pursuant to the certificate of incorporation or bylaws of the Co-
Makers or the Guarantors, any award of any arbitrator or any agreement
(including any agreement with stockholders), instrument, order, judgment,
decree, statute, law, rule or regulation to which the Co-Makers or the
Guarantors are subject.
(d) Consents. Neither the nature of the business conducted by the
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Co-Makers, nor any of its properties, nor any relationship between the Co-Makers
and any other Person, nor any circumstance in connection with the transactions
contemplated by this Amendment is such as to require any authorization, consent,
approval, exemption or other action by or notice to or filing with any court or
administrative or governmental body or any other Person in connection with the
execution and delivery of this Amendment or fulfillment of or compliance with
the terms and provisions hereo f.
(e) No Event of Default or Default. Immediately following the
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effectiveness of this Amendment, no Event of Default or Default exists.
(f) Other. All representations and warranties of the Co-Makers in
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the Credit Agreement and in the Security Documents are true and correct on the
date hereof, as though made on and as of such date.
Section 4. Miscellaneous.
(a) References to Note Agreement. Upon and after the Effective Date,
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each reference to the Note Agreement in each document relating thereto shall
mean and be a reference to such Note Agreement as amended by this Amendment.
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(b) Ratification and Confirmation. Except as specifically amended
-----------------------------
herein, the Note Agreement shall remain in full force and effect, and is hereby
ratified and confirmed.
(c) No Waiver. The execution, delivery and effectiveness of this
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Amendment shall not operate as a waiver of any right, power or remedy of any
Purchaser or any other holder of Notes, nor constitute a waiver of any provision
of the Note Agreement (as amended by this Amendment), the Notes or any other
document relating thereto.
(d) Expenses. The Company confirms its agreement, pursuant to
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paragraph 11B of the Note Agreement, to pay promptly all expenses of Purchaser
related to this Amendment and all matters contemplated hereby, including,
without limitation, all fees and expenses of the Purchasers' special counsel.
(e) GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
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ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, AND EACH OF THE PARTIES HERETO CHOOSES NEW YORK LAW TO
GOVERN THIS AMENDMENT PURSUANT TO N.Y. GEN. OBLIG. LAW SECTION 5-1401 (CONSOL.
1995).
(f) Counterparts. This Amendment may be executed in counterparts
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(including those transmitted by facsimile), each of which shall be deemed an
original and all of which taken together shall constitute one and the same
document. Delivery of this Amendment may be made by facsimile transmission of a
duly executed counterpart copy hereof.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment as of the date first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: __________________________________________________
Name: ___________________________________________
Title: __________________________________________
PRINCIPAL LIFE INSURANCE COMPANY
By: PRINCIPAL CAPITAL MANAGEMENT, LLC, a Delaware
limited liability company, its authorized
signatory
By: ______________________________________________
Title: ______________________________________
By: ______________________________________________
Title: ______________________________________
PRINCIPAL LIFE INSURANCE COMPANY, ON BEHALF OF ONE OR
MORE SEPARATE ACCOUNTS
By: PRINCIPAL CAPITAL MANAGEMENT, LLC, a Delaware
limited liability company, its authorized
signatory
By: ___________________________________________________
Title: ____________________________________________
By: ___________________________________________________
Title: ____________________________________________
S-1
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXXX
___________________________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________________
Title: Treasurer
____________________________________________
GPX CORP.
By: /s/ XXXX X. XXXXXXX
___________________________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________________
Title: Treasurer
____________________________________________
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Each of the undersigned Guarantors, having guaranteed the obligations of
the Co-Makers under the Note Agreement and the Notes issued thereunder, pursuant
to a Guaranty dated as of August 31, 1998 (the "Guaranty") hereby consents, as
of the date first above written, to the execution by the Co-Makers of the
foregoing Amendment; and reaffirms that the obligations of the Co-Makers under
the Note Agreement (defined above) as amended by the Amendment, and under the
replacement Notes issued pursuant to the Amendment constitute "Guaranteed
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Indebtedness" within the meaning of that Guaranty; and affirms that the Guaranty
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remains in full force and effect in favor of the Purchasers; and confirms that
the representations made in Section 4 hereof, insofar as such representations
relate to such Guarantor, are true and correct as of the date of the Amendment.
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXXX
___________________________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________________
Title: Treasurer
____________________________________________
GPX CORP.
By: /s/ XXXX X. XXXXXXX
___________________________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________________
Title: Treasurer
____________________________________________
XXXXXXXX-XXXXXX REFRACTORIES COMPANY
By: /s/ XXXX X. XXXXXXX
___________________________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________________
Title: Treasurer
____________________________________________
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XXXXXXXX-XXXXXX INTERNATIONAL REFRACTORIES, INC.
By: /s/ XXXXX X. XXXXXX
___________________________________________________
Name: Xxxxx X. Xxxxxx
_____________________________________________
Title: Vice President
____________________________________________
A.P. GREEN REFRACTORIES, INC.
By: /s/ XXXX X. XXXXXXX
___________________________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________________
Title: Treasurer
____________________________________________
S-4
EXHIBIT A
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[FORM OF SERIES A NOTE]
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
GPX CORP.
6.45% SENIOR NOTE, SERIES A, DUE January 31, 2002
No. A-_____ [Date]
$_________
FOR VALUE RECEIVED, the undersigned, GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
(the "Company"), a corporation organized and existing under the laws of the
State of Delaware, and GPX CORP., a corporation organized and existing under the
laws of the State of Nevada (collectively, "Co-Makers"), hereby jointly and
severally promise to pay to ___________________, or registered assigns, the
principal sum of _______________________ DOLLARS on January 31, 2002, with
interest (computed on the basis of a 360-day year--30-day month) (a) on the
unpaid balance thereof through July 31, 1999, at the rate of 6.45% per annum;
from August 1, 1999 through October 31, 1999, at the rate of 7.20%; from
November 1, 1999 through January 31, 2000, at the rate of 7.95%; from February
1, 2000 through April 30, 2000, at the rate of 8.45%; from May 1, 2000 until the
principal thereof shall have become due and payable at the rate of 8.95%, such
interest being payable semiannually on the 31st day of July and January in each
year, commencing with the July or January next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Yield-Maintenance Amount (as defined in
the Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the lesser of (a) the maximum rate permitted by applicable
law or (b) the greater of (i) 2% in excess of the interest rate that otherwise
would apply under this Note at such time or (ii) 2% over the rate of interest
publicly announced by the Bank of New York from time to time in New York City as
its Prime Rate.
Payments of principal of, interest on and any Yield-Maintenance Amount
payable with respect to this Note are to be made at the main office of the Bank
of New York in New York City or at such other place as the holder hereof shall
designate to the Company in writing, in lawful money of the United States of
America.
This Note is one of the 6.45% Senior Notes, Series A (the "Notes") issued
pursuant to a Note Agreement, dated as of January 31, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), among
the Co-Makers and the original purchasers of the Series A Notes named in the
Information Schedule attached thereto and is entitled to the
N-1
benefits thereof. As provided in the Agreement, this Note is subject to
prepayment, in whole or from time to time in part on the terms specified in the
Agreement.
This Note is a registered Note and, as provided in and subject to the
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Makers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Makers shall not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or from time to time
in part, on the terms specified in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the Agreement.
The Co-Makers and any and all endorsers, guarantors and sureties severally
waive grace, demand, presentment for payment, notice of dishonor or default,
notice of intent to accelerate, notice of acceleration (to the extent set forth
in the Agreement), protest and diligence in collecting.
Should any indebtedness represented by this Note be collected at law or in
equity, or in bankruptcy or other proceedings, or should this Note be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, Yield-Maintenance Amount, if any, and interest due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses (including those incurred in connection
with any appeal).
The Co-Makers, and the purchaser and the registered holder of this Note
specifically intend and agree to limit contractually the amount of interest
payable under this Note to the maximum amount of interest lawfully permitted to
be charged under applicable law. Therefore, none of the terms of this Note
shall ever be construed to create a contract to pay interest at a rate in excess
of the maximum rate permitted to be charged under applicable law, and neither
the Co-Makers nor any other party liable or to become liable hereunder shall
ever by liable for interest in excess of the amount determined at such maximum
rate, and the provisions of paragraph 11R of the Agreement shall control over
any contrary provision of this Note.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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This note is intended to be performed in the State of New York and shall
be construed and enforced in accordance with the law of such State.
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
By: ________________________________________________________
Vice President
By: ________________________________________________________
Treasurer
GPX CORP.
By: ________________________________________________________
Vice President
By: ________________________________________________________
Treasurer
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EXHIBIT B
---------
[FORM OF SERIES B NOTE]
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
GPX CORP.
6.76% SENIOR NOTE, SERIES B, DUE January 31, 2006
No. B-_____ [Date]
$_________
FOR VALUE RECEIVED, the undersigned, GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
(the "Company"), a corporation organized and existing under the laws of the
State of Delaware, and GPX CORP., a corporation organized and existing under the
laws of the State of Nevada (collectively, "Co-Makers"), hereby jointly and
severally promise to pay to ___________________, or registered assigns, the
principal sum of _______________________ DOLLARS on January 31, 2006, with
interest (computed on the basis of a 360-day year--30-day month) (a) on the
unpaid balance thereof through July 31, 1999, at the rate of 6.76% per annum;
from August 1, 1999 through October 31, 1999, at the rate of 7.51%; from
November 1, 1999 through January 31, 2000, at the rate of 8.26%; from February
1, 2000 through April 30, 2000, at the rate of 8.76%; from May 1, 2000 until the
principal thereof shall have become due and payable at the rate of 9.26%, such
interest being payable semiannually on the 31st day of July and January in each
year, commencing with the July or January next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Yield-Maintenance Amount (as defined in
the Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the lesser of (a) the maximum rate permitted by applicable
law or (b) the greater of (i) 2% in excess of the interest rate that otherwise
would apply under this Note at such time or (ii) 2% over the rate of interest
publicly announced by the Bank of New York from time to time in New York City as
its Prime Rate.
Payments of principal of, interest on and any Yield-Maintenance Amount
payable with respect to this Note are to be made at the main office of the Bank
of New York in New York City or at such other place as the holder hereof shall
designate to the Company in writing, in lawful money of the United States of
America.
This Note is one of the 6.76% Senior Notes, Series B (the "Notes") issued
pursuant to a Note Agreement, dated as of January 31, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), among
the Co-Makers and the original purchasers of the Series B Notes named in the
Information Schedule attached thereto and is entitled to the
N-1
benefits thereof. As provided in the Agreement, this Note is subject to
prepayment, in whole or from time to time in part on the terms specified in the
Agreement.
This Note is a registered Note and, as provided in and subject to the
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Makers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Makers shall not be affected by any notice to
the contrary.
The Co-Makers agree to make required prepayments of principal on the dates
and in the amounts specified in the Agreement. This Note is also subject to
optional prepayment, in whole or from time to time in part, on the terms
specified in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the Agreement.
The Co-Makers and any and all endorsers, guarantors and sureties severally
waive grace, demand, presentment for payment, notice of dishonor or default,
notice of intent to accelerate, notice of acceleration (to the extent set forth
in the Agreement), protest and diligence in collecting.
Should any indebtedness represented by this Note be collected at law or in
equity, or in bankruptcy or other proceedings, or should this Note be placed in
the hands of attorneys for collection, the Co-Makers agree to pay, in addition
to the principal, Yield-Maintenance Amount, if any, and interest due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses (including those incurred in connection
with any appeal).
The Co-Makers, and the purchaser and the registered holder of this Note
specifically intend and agree to limit contractually the amount of interest
payable under this Note to the maximum amount of interest lawfully permitted to
be charged under applicable law. Therefore, none of the terms of this Note
shall ever be construed to create a contract to pay interest at a rate in excess
of the maximum rate permitted to be charged under applicable law, and neither
the Co-Makers nor any other party liable or to become liable hereunder shall
ever by liable for interest in excess of the amount determined at such maximum
rate, and the provisions of paragraph 11R of the Agreement shall control over
any contrary provision of this Note.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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This note is intended to be performed in the State of New York and shall
be construed and enforced in accordance with the law of such State.
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
By: ________________________________________________________
Vice President
By: ________________________________________________________
Treasurer
GPX CORP.
By: ________________________________________________________
Vice President
By: ________________________________________________________
Treasurer
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SCHEDULE 6K
