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EXHIBIT 10(xxii)
AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Amendment"), dated as of
February 9, 1998, and effective as of December 31, 1997
pursuant to Section 6 hereof, between General Electric
Capital Corporation ("GE Capital"), as lender ("Lender") and
agent ("Agent") under the Credit Agreement referred to below
and Figgie International Inc. ("Borrower").
W I T N E S S E T H
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WHEREAS, Borrower and GE Capital, as Lender and as Agent, have
entered into a Credit Agreement, dated as of December 19, 1995 (as heretofore
amended, the "Credit Agreement"; the terms defined in Credit Agreement being
used herein as therein defined, unless otherwise defined herein); and
WHEREAS, Borrower wishes to amend, INTER ALIA, the Applicable
Margin, the Borrowing Base requirement and the financial covenants contained in
the Credit Agreement and certain definitions contained in Annex A to the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereby agree as follows:
SECTION 1. Amendments to Credit Agreement.
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a. AMENDMENT TO SECTION 1.1(a). Section 1.1(a) is hereby amended to
delete the proviso in the first sentence therein.
b. AMENDMENT TO SECTION 1.1(e). Section 1.1(e) is hereby amended to
delete it in its entirety and to substitute in lieu thereof the
phrase "[Section 1.1(e) intentionally omitted.]".
c. AMENDMENT TO SECTION 1.4(a). Section 1.4(a) is hereby amended: (i)
to delete the proviso in the first paragraph therein; and (ii) to
delete the second paragraph therein in its entirety.
d. AMENDMENT TO SECTION 1.5. Section 1.5 is hereby amended to delete it
in its entirety and to substitute in lieu thereof "[Section 1.5
intentionally omitted.]".
e. AMENDMENTS TO SECTION 1.6(c). (i) Section 1.6(c) is hereby amended
to delete the reference to "one and one-half percent (1.5%)" therein
and to substitute in
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lieu thereof the reference to "one percent (1.0%)"; (ii) to delete
the proviso in the first paragraph therein; and (iii) to delete the
second paragraph therein in its entirety.
f. AMENDMENTS TO SECTION 2.2(c). Section 2.2(c) is hereby
amended: (i) to delete from the first paragraph therein clause (i)
in its entirety and to substitute in lieu thereof the phrase "(i)
the aggregate principal amount of the Revolving Credit Loan shall
not exceed the Maximum Revolving Credit Commitment less the
outstanding Letter of Credit Obligations" and (ii) to delete the
proviso at the end thereof.
g. Amendments to Section 3.4.
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(i) Section 3.4(b) is hereby amended: (x) to delete the two
references to "September 30, 1995" therein and to substitute in lieu
thereof, in each case, the reference to "September 30, 1997"; and
(y) to insert the phrase "or in writing to Agent and Lenders"
immediately after the term "Agreement" in the last line therein.
(ii) Section 3.4(d) is hereby amended: (x) to delete the reference
to "December 31, 1994" therein and to substitute in lieu thereof the
reference to "December 31, 1996"; and (y) to delete the reference to
"1995" therein and to substitute in lieu thereof the reference to
"1997".
h. AMENDMENT TO SECTION 6.3. Section 6.3 is hereby amended to
delete from clause (viii) therein the phrase "or Agent in the case
of any such renewal, extension, refinancing or refunding of
Indebtedness secured by the CAFIG Mortgage".
i. Amendments to Section 6.10.
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(i) Section 6.10 is hereby amended to delete subsections (a), (b),
(c), (d) and (e) and to substitute in lieu thereof the following:
"(a) LEVERAGE RATIO. Borrower shall maintain for each four
Fiscal Quarter period, commencing with the four Fiscal
Quarter period ending on December 31, 1997, a Leverage
Ratio for such period of not greater than 5 : 1."
(ii) Section 6.10(f) is hereby amended: (w) to delete the phrase
"(f)" therein and to substitute in lieu thereof the phrase "(b)";
(x) to delete from the sixth line therein the reference to
"$8,000,000" and to substitute in lieu thereof the phrase
"$8,500,000
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(or as such amount may be increased in any Fiscal Year thereafter
with the written approval of Agent and Lenders)"; (y) to delete from
the penultimate line therein the reference to "$5,000,000" and to
substitute in lieu thereof the reference to "$10,000,000"; and (z)
to insert at the end thereof the following sentence: "Such
$10,000,000 of Capital Expenditures for purposes of the Chagrin
Highland development may be made directly by Borrower or indirectly
by a Subsidiary of Borrower or a Joint Venture Subsidiary, and shall
be in addition to the Investments permitted by Section 6.2(vii)
hereof".
j. AMENDMENT TO SECTION 9.10(a). Section 9.10(a) is hereby
amended to delete beginning from the sixth line therein the phrase
", or that any particular items of Collateral meet eligibility
criteria applicable in respect of the Borrowing Base".
k. AMENDMENTS TO SECTION 10.2(b). Section 10.2(b) is hereby
amended to delete the two references to "$7,500,000" therein and to
substitute in lieu thereof, in each case, the reference to
"$10,000,000".
l. AMENDMENT TO SECTION 11.1. Section 11.1 is hereby amended
to delete from clause (i) therein the phrase ", or increase the
advance rate percentages contained in the term "Borrowing Base"
therein.
m. AMENDMENT TO SECTION 11.2(d). Section 11.2(d) is hereby
amended to delete from clause (ii) therein the phrase "prior to the
inclusion of such Equipment or machinery as Eligible Equipment"
therein.
n. AMENDMENTS TO SECTION 11.10(c). Section 11.10(c) is hereby
amended to delete it in its entirety and to substitute in lieu
thereof the following:
"(c) If to Borrower, at:
Figgie International Inc.
0000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
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With copies to:
Figgie International Inc.
0000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
and
Xxxxxx, Halter & Xxxxxxxx
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000"
SECTION 2. Amendments to Annex A to the Credit
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Agreement.
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a. DEFINITION OF "APPLICABLE MARGIN". The definition of the
term "Applicable Margin" is hereby amended to read as follows:
"APPLICABLE MARGIN" shall mean (i) with respect to Index Rate
Advances, 0% per annum and (ii) with respect to LIBOR Rate Advances,
2.0% per annum.
b. DEFINITION OF "BORROWING AVAILABILITY". The definition of
the term "Borrowing Availability" is hereby amended to delete
subsection (a) thereof and to substitute the following in lieu
thereof: "(a) with respect to the Revolving Credit Loan, the Maximum
Revolving Credit Commitment less (i) the outstanding Letter of
Credit Obligations and (ii) the outstanding amount of the Revolving
Credit Loan, and".
c. DEFINITION OF "CAPITAL LEASE". The definition of the term
"Capital Lease" is hereby amended to insert the phrase "or any
Subsidiary thereof" immediately after the word "Borrower" in the
last two lines of such definition.
d. DEFINITION OF "CHANGE OF CONTROL". The definition of the
term "Change of Control" is hereby amended to delete the references
in clause (ii) therein to "Xxxxxx Xxxxxx" and to substitute in lieu
thereof the reference to "Xxxxx Xxxxxx, Xx.".
e. DEFINITION OF "SENIOR OFFICER". The definition of the term
"Senior Officer" is hereby amended to delete the word "or"
immediately after the term "Controller" therein, to substitute in
lieu thereof a
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comma and to insert the phrase "or Assistant Treasurer" immediately
after the term "Treasurer".
f. DELETED DEFINITIONS. Annex A to the Credit Agreement is
hereby amended to delete the definitions of the following terms
therein in their entirety: "Borrowing Base", "Borrowing Base
Certificate", "CAFIG Mortgage", "Current Assets", "Current
Liabilities", "Eligible Accounts", "Eligible Equipment" and
"Eligible Inventory".
g. ADDITIONAL DEFINITIONS. Annex A to the Credit Agreement is
hereby amended to add the following new definitions in the proper
alphabetical order:
"LEVERAGE RATIO" shall mean, with respect to any date of
determination, the ratio of (a) the sum of Indebtedness for borrowed
money and Letter of Credit Obligations, less cash and Cash
Equivalents to (b) EBITDA of Borrower for the twelve month period
ended as of such date of determination.
SECTION 3. AMENDMENT TO ANNEX D TO THE CREDIT AGREEMENT. Annex D to
the Credit Agreement is hereby amended by deleting Paragraph (a)
therein in its entirety and to substitute in lieu thereof the phrase
"[Paragraph (a) intentionally omitted.]".
SECTION 4. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Agent and Lenders as follows:
a. All of the representations and warranties of Borrower
contained in the Credit Agreement and in the other Loan
Documents are true and correct on the date hereof as though
made on such date, except to the extent that any such
representation or warranty expressly relates to an earlier
date for changes permitted or contemplated by the Credit
Agreement or as otherwise disclosed in writing to Agent and
Lenders. No Default or Event of Default has occurred and is
continuing or would result from the transactions contemplated
hereby.
b. The execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary or proper
corporate action and do not require the consent or approval of
any Person which has not been obtained.
c. This Amendment has been duly executed and delivered by
Borrower and each of this Amendment
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and the Credit Agreement as amended hereby constitutes a
legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
a. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein", or words of like import, and each
reference in other Loan Documents to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as
modified hereby.
b. Except as specifically amended herein, the Credit Agreement
shall remain in full force and effect and is hereby ratified
and confirmed.
c. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a
modification of any right, power, or remedy of the Agent or
the Lenders under any of the Loan Documents, nor constitute a
modification of any provision of any of the Loan Documents.
SECTION 6. EFFECTIVENESS. This Amendment shall become effective as
of December 31, 1997, provided that each of the following conditions
has been satisfied on the date hereof, including the delivery to
Agent of each of the documents set forth below in form and substance
satisfactory to Agent:
a. Counterparts of this Amendment duly executed by Borrower,
each Lender and Agent.
b. All of the representations and warranties of Borrower
contained in Section 4 hereof shall be true and correct and
certified by a certificate of an officer of Borrower.
SECTION 7. EXPENSES. Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of Agent in connection with the
preparation, execution and delivery of this Amendment, including,
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without limitation, the reasonable fees and out-of-pocket expenses
of counsel for Agent with respect thereto.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by,
construed and enforced in accordance with the laws of the State of
New York, without regard to conflict of laws principles thereof.
SECTION 9. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, which shall, collectively and separately,
constitute one agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
FIGGIE INTERNATIONAL INC.
By: /s/
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: /s/
Name: Xxxx Luck
Title: Senior Vice President,
GE Capital Commercial
Finance, Inc., Being duly
authorized
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