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Exhibit 10(u)
AMENDMENT NO. 2 AND CONSENT
Dated as of November 8, 1995
THIS AMENDMENT NO. 2 AND CONSENT ("Amendment") is entered into as of
November 8, 1995 by and among THE XXXXXX & SESSIONS CO., an Ohio corporation
(the "Borrower"), GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("GE Capital"), as the sole "Lender" (as defined in the Loan Agreement referred
to below) and GE Capital as agent for the Lenders (in such capacity, the
"Agent").
PRELIMINARY STATEMENT
A. The Borrower, the Lender and the Agent are parties to that
certain Loan Agreement dated as of February 13, 1992, as amended and restated
as of July 14, 1995 (as the same has been and may be further amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Loan Agreement.
B. The Borrower proposes to sell all of the issued and
outstanding capital stock of Valley-Todeco (the "Valley-Todeco Sale") to
XxXxxxxxx Investments, Inc., a Delaware corporation ("Buyer") pursuant to the
terms of that certain Agreement of Purchase and Sale of Stock dated November 7,
1995 between the Borrower and the Buyer (the "Purchase Agreement").
C. The Borrower has requested that the Agent and the Lender
consent to the Valley-Todeco Sale, and the Agent and the Lender have agreed to
provide such consent subject to the terms hereof. The Borrower, the Lender and
the Agent have also agreed to amend the Loan Agreement on the terms and
conditions hereinafter; set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower, the Lender and the Agent hereby agree as
follows:
SECTION 1. CONSENT AND WAIVER. Effective as of the date first
written above, and subject to the satisfaction of the conditions precedent set
forth in SECTION 3 below, the Agent and the Lender consent to the Valley-Todeco
Sale pursuant to the terms of the Purchase Agreement. The Agent and the Lender
waive any noncompliance with Sections 7.1 of the Loan Agreement which would
exist as a result of the Valley-Todeco Sale or the execution of the Purchase
Agreement.
SECTION 2. AMENDMENTS TO THE LOAN AGREEMENT;
APPLICATION OF PROCEEDS FROM PURCHASE AGREEMENT.
(a) Effective as of the "Closing" under and as defined in the
Purchase Agreement, subject to the satisfaction of the conditions precedent set
forth in SECTION 3 below, the Loan Agreement is amended as follows:
(1) SECTION 1.1 of the Loan Agreement is amended by deleting the
definitions of "Valley-Todeco", Valley-Todeco Guaranty", "Valley-Todeco
Loan Agreement", Valley-
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Todeco Loan Agreement Assignment", Valley-Todeco Mortgage", and
Valley-Todeco Pledge Agreement" in their entirety.
(2) SECTION 1.1 of the Loan Agreement is further amended by
deleting the following from the definition of "Loan Agreement":
"the Valley-Todeco Loan Agreement, the Valley-Todeco Loan
Agreement Assignment, the Valley-Todeco Guaranty and Security
Agreement, the Valley Todeco, Mortgage, the Valley-Todeco Pledge
Agreement"
(3) Section 7.3(a) of the Loan Agreement is deleted in its entirety,
and the following is substituted therefor:
"This Section intentionally left blank."
(4) Section 8.1 of the Loan Agreement is amended by deleting
"(other than Valley-Todeco)".
(5) Section 8.2(h) of the Loan Agreement is amended by adding
"and" immediately prior to clause (iii) thereof, deleting "; and" at the
end of the clause (iii) and substituting a period therefor, and by deleting
clause (iv) in its entirety.
(6) Section 8.3(a) of the Loan Agreement is amended by adding
"and" immediately prior to clause (viii) thereof, deleting "; and" at the
end of clause (viii) and substituting a period therefor, and by deleting
clause (ix) in its entirety.
(7) Section 8.10 of the Loan Agreement is amended by deleting the
second paragraph thereof in its entirety.
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become
effective and be deemed effective as of the date first above written upon
satisfaction of the following conditions precedent:
(a) the Agent shall have received the following:
(i) four (4) copies of this Amendment duly executed by the Borrower,
the Lender and the Agent;
(ii) Reaffirmations of Guaranty and Security Agreement in
substantially the form of EXHIBIT A attached hereto, duly executed by each
of Xxxxxx Chimes and Youngstown Steel Door; and
(iii) an Assignment of Purchase Agreement Rights with respect to the
Purchase Agreement, executed by the Borrower and acknowledged by the Buyer;
(b) All mortgage releases and UCC financing statement terminations
partial releases which the Agent or the Lender have been required to execute
pursuant to the Purchase Agreement shall be in form and substance satisfactory
to the Agent and the Lender;
(c) The "Closing" under and as defined in the Asset Purchase Agreement
shall have occurred and the Agent and the Lender shall have received a
certificate of the chief financial officer of the Borrower to that effect;
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(d) The Agent shall have received the amount of the Purchase Price
payable on the Closing Date for application in accordance with SECTION 2.3(C)
of the Agreement, and the Purchase Price shall satisfy the condition of the
second paragraph of SECTION 8.10 of the Loan Agreement (as in effect
immediately prior to this Amendment); and
(e) the Valley-Todeco Loan Agreement shall have been terminated;.
SECTION 4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
4.1 Except to the extent that any representation or warranty expressly
is made only with respect to an earlier date, upon the effectiveness of this
Amendment, the Borrower hereby reaffirms all covenants, representations and
warranties made by it in the Loan Agreement to the extent the same are not
amended hereby and agrees that all such covenants, representations and
warranties shall be deemed to have been re-made as of the effective date of
this Amendment. In addition, the Borrower covenants and agrees that it will not
amend or agree to amend the Purchase Agreement without the prior written
consent of the Agent.
4.2 The Borrower hereby represents and warrants that this Amendment
constitutes the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and general
principles of equity which may limit the availability of equitable remedies.
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN AGREEMENT.
5.1 Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein," "hereby"
or words of like import shall mean and be a reference to the Loan Agreement as
amended hereby, and each reference to the Loan Agreement in any other document,
instrument or Agreement executed and/or delivered in connection with the Loan
Agreement shall mean and be a reference to the Loan Agreement as amended
hereby.
5.2 Except as specifically amended hereby, the Loan Agreement and
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.
5.3 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of any Lender or the
Agent under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision contained therein, except as specifically
set forth herein.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same instrument.
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SECTION 8. HEADINGS. Section headings in this Amendment are included
herein for convenience or reference only and shall not constitute a part of
this Amendment for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereto duly authorized as of the date
first written above.
THE XXXXXX & SESSIONS CO.
By: /s/ Xxxxx X. Xxxx
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Title: Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as
the Agent and as the sole Lender
By:
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Title:
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EXHIBIT A
to
Amendment
Form of Reaffirmation of Guaranty and Security Agreement
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(Attached.)
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REAFFIRMATION OF GUARANTY AND SECURITY AGREEMENT
The undersigned hereby (i) acknowledges receipt of that certain
Amendment No. 2 and Consent of even date herewith (the "Amendment") to the Loan
Agreement dated as of February 13, 1992, as amended and restated as of July 14,
1995 (as such Loan Agreement has been and may be amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
among THE XXXXXX & SESSIONS CO. (the "Borrower"), GENERAL ELECTRIC CAPITAL
CORPORATION ("GE Capital"), as a "Lender" (as defined in the Loan Agreement)
and GE Capital, as agent for the Lenders (in such capacity, the "Agent"), (ii)
reaffirms all of its obligations under that certain Guaranty and Security
Agreement dated as of February 13, 1992 ("Guaranty and Security Agreement"),
made by the undersigned in favor of the Lenders, and (iii) acknowledges and
agrees that such Guaranty and Security Agreement remains in full force and
effect notwithstanding the Amendment, and that such Guaranty and Security
Agreement is hereby ratified and confirmed.
Date: November 8, 1995
THE XXXXXX CHIMES CO.
By: /s/ Xxxxx X. Xxxx
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Title: Treasurer
