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Exhibit 10.29
FIRST AMENDMENT, dated as of December 17, 1998, by and among SOCIETE
GENERALE, as administrative agent (in such capacity, the "ADMINISTRATIVE AGENT")
for the Lenders (as defined in the Credit Agreement referred to below), the
Lenders, DAY INTERNATIONAL GROUP, INC., a Delaware corporation (the "BORROWER")
and DAY INTERNATIONAL INC., a Delaware corporation ("DAY INTERNATIONAL"), (this
"AMENDMENT"), to (i) the Credit Agreement, dated as of January 15, 1998 (the
"CREDIT AGREEMENT"), among the Borrower, the Lenders and the Administrative
Agent and (ii) the Guarantee and Collateral Agreement executed pursuant to the
Credit Agreement (the "GUARANTEE AND COLLATERAL AGREEMENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower;
WHEREAS, the Borrower or a wholly-owned Subsidiary of the Borrower
intends to enter into (i) a definitive acquisition agreement (the "ROTEC
ACQUISITION AGREEMENT") with the shareholders of Rotec Hulsensysteme GmbH, a
German corporation ("ROTEC"), pursuant to which the Borrower or a wholly-owned
Subsidiary of the Borrower will agree to acquire all the shares of the issued
and outstanding Capital Stock of Rotec and (ii) a non-competition agreement with
the shareholders of Rotec (such transactions, the "ROTEC ACQUISITION"); and
WHEREAS, the Borrower has requested, and, upon this Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Amendment to
provide for additional loans under the Credit Agreement to finance the Rotec
Acquisition and to permit the consummation of the Rotec Acquisition;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. DEFINED TERMS. Terms defined in the Credit Agreement, as amended
hereby, and used herein shall have the meanings given to them in the Credit
Agreement, as amended hereby.
II. AMENDMENTS TO CREDIT AGREEMENT.
1. AMENDMENTS TO SECTION 1. Subsection 1.1 of the Credit Agreement is
hereby amended as follows:
(a) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
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"AGGREGATE EXPOSURE": with respect to any Lender, an amount
equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of such Lender's Term Loans or New Term Loans
and (ii) the amount of such Lender's Revolving Credit Commitment or, if
the Revolving Credit Commitments have been terminated, the amount of
such Lender's Revolving Extensions of Credit.
(b) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
"APPLICABLE MARGIN": for each Type of Loan, the rate per annum
set forth under the relevant column heading below:
BASE RATE EURODOLLAR
LOANS LOANS
Revolving Credit Loans and Swing Line Loans 1.00% 2.00%
Term Loans 1.00% 2.00%
New Term Loans 2.00% 3.00%
PROVIDED, that on and after the first Adjustment Date occurring after the
completion of four full fiscal quarters of the Borrower after the Closing
Date, the Applicable Margin with respect to Revolving Credit Loans, Swing
Line Loans, Term Loans and New Term Loans will be determined pursuant to
the Pricing Grid.
(c) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
"COMMITMENT": as to any Lender, the sum of the Term Loan
Commitment, the New Term Loan Commitment and the Revolving Credit
Commitment of such Lender.
(d) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
"EXCESS CASH FLOW": for any period, the excess, if any, of (a)
the sum, without duplication, of (i) Consolidated Net Income for such
period (excluding, for purposes of this definition, any contribution to
such Consolidated Net Income resulting from a Recovery Event), (ii) an
amount equal to the amount of all non-cash charges (including depreciation
and amortization) deducted in arriving at such Consolidated Net Income,
(iii) decreases in Consolidated Working Capital for such period, (iv) an
amount equal to the aggregate net non-cash loss on the Disposition of
Property by the Borrower and its Subsidiaries during such period (other
than sales of inventory in the ordinary course of business), to the extent
deducted in arriving at such Consolidated Net Income and (v) the net
increase during such period (if any) in deferred tax accounts of the
Borrower OVER (b) the sum, without duplication, of (i) an
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amount equal to the amount of all non-cash credits included in arriving at
such Consolidated Net Income, (ii) the aggregate amount actually paid by
the Borrower and its Subsidiaries in cash during such period on account of
Capital Expenditures (excluding the principal amount of Indebtedness
incurred in connection with such expenditures pursuant to 7.2(c) and (d)
and any such expenditures financed with the proceeds of any Recovery
Event), (iii) the aggregate amount of all prepayments of Revolving Credit
Loans and Swing Line Loans during such period to the extent accompanying
permanent optional reductions of the Revolving Credit Commitments and all
optional prepayments of the Term Loans and New Term Loans during such
period, (iv) the aggregate amount of all regularly scheduled principal
payments, optional prepayments and mandatory prepayments pursuant to
Section 2.12(c) (or any comparable provision of any other Funded Debt) of
Funded Debt (including, without limitation, the Term Loans and the New
Term Loans) of the Borrower and its Subsidiaries made during such period
(other than in respect of any revolving credit facility to the extent
there is not an equivalent permanent reduction in commitments thereunder),
(v) increases in Consolidated Working Capital for such period, (vi) an
amount equal to the aggregate net non-cash gain on the Disposition of
Property by the Borrower and its Subsidiaries during such period (other
than sales of inventory in the ordinary course of business), to the extent
included in arriving at such Consolidated Net Income, (vii) any investment
made in accordance with Sections 7.8(h), (n) and (o) hereof, and (viii)
the net decrease during such period (if any) in deferred tax accounts of
the Borrower.
(e) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
"FACILITY": each of (a) the Term Loan Commitments and the Term
Loans made thereunder (the "TERM LOAN FACILITY"), (b) the New Term Loan
Commitments and the New Term Loans made thereunder (the "NEW TERM LOAN
FACILITY") and (c) the Revolving Credit Commitments and the extensions of
credit made thereunder (the "REVOLVING CREDIT FACILITY").
(f) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
"MAJORITY FACILITY LENDERS": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans, the New Term Loans or the Total Revolving Extensions of
Credit, as the case may be, outstanding under such Facility (or, in the
case of the Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, the holders of more than 50% of the Total
Revolving Credit Commitments).
(g) by deleting therefrom the definition of the following defined
term in its entirety and substituting in lieu thereof the following
definition:
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"REQUIRED LENDERS": the holders of more than 50% of (a) until
the Closing Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans and the New Term Loans
and (ii) the Total Revolving Credit Commitments or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit.
(h) by adding thereto the following definitions in their appropriate
alphabetical order:
"EFFECTIVE DATE": the date on which the conditions precedent set
forth in Section IV of the First Amendment to this Agreement shall have
been satisfied.
"NEW TERM LOAN": as defined in Section 2.1A.
"NEW TERM LOAN COMMITMENT": as to any Lender, the obligation of
such Lender, if any, to make a New Term Loan to the Borrower hereunder in
a principal amount not to exceed the amount set forth under the heading
"New Term Loan Commitment" opposite such Lender's name on Schedule 1.1A.
The original aggregate amount of the New Term Loan Commitments is
$10,000,000.
"NEW TERM LOAN LENDER": each Lender which has a New Term Loan
Commitment or which is the holder of a New Term Loan.
"NEW TERM LOAN PERCENTAGE": as to any New Term Loan Lender at
any time, the percentage which such Lender's New Term Loan Commitment then
constitutes of the aggregate New Term Loan Commitments (or, at any time
after the Effective Date, the percentage which the aggregate principal
amount of such Lender's New Term Loans then outstanding constitutes of the
aggregate principal amount of the New Term Loans then outstanding ).
"NEW TERM LOAN SYNDICATION DATE": the earlier of (x) the date on
which the Administrative Agent completes the syndication of the New Term
Loans and the entities selected in such syndication process become parties
to this Agreement and (y) 60 Business Days following the Effective Date.
"ROTEC": Rotec Hulsensysteme GmbH, a German corporation.
"ROTEC ACQUISITION": the acquisition by the Borrower or a
wholly-owned Subsidiary of the Borrower of all the shares of the issued
and outstanding Capital Stock of Rotec pursuant to the Rotec Acquisition
Agreement.
"ROTEC ACQUISITION AGREEMENT": the acquisition agreement to be
entered into by and between the Borrower or a wholly-owned Subsidiary of
the Borrower, as purchaser, and the shareholders of Rotec, as seller.
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2. AMENDMENTS TO SECTION 2. (a) Section 2 of the Credit Agreement is
hereby amended by adding thereto the following subsections 2. 1 A through 2.3 A:
2.1A TERM LOAN COMMITMENTS. Subject to the terms and conditions
hereof, each New Term Loan Lender severally agrees to make a new term loan
(a "NEW TERM LOAN") to the Borrower on the Effective Date in an amount
equal to such New Term Loan Lender's New Term Loan Percentage of
$10,000,000. The New Term Loans may from time to time be Eurodollar Loans
or Base Rate Loans, or a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with
Sections 2.2A and 2.13.
2.2A PROCEDURE FOR TERM LOAN BORROWING. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, one
Business Day prior to the anticipated Effective Date) requesting that the
New Term Loan Lenders make the New Term Loans on the Effective Date and
specifying the amount to be borrowed. Unless the Lenders otherwise agree,
the New Term Loans made on the Effective Date shall initially be Base Rate
Loans, and no New Term Loan may be converted into or continued as a
Eurodollar Loan having an Interest Period in excess of one month prior to
the New Term Loan Syndication Date. Upon receipt of such notice the
Administrative Agent shall promptly notify each New Term Loan Lender
thereof. Not later than 10:00 A.M., New York City time, on the Effective
Date each New Term Loan Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal
to the New Term Loan to be made by such Lender. The Administrative Agent
shall make available to the Borrower the aggregate of the amounts made
available to the Administrative Agent by the New Term Loan Lenders in
immediately available funds.
2.3A REPAYMENT OF NEW TERM LOANS. The New Term Loan of each New
Term Lender shall mature in 16 consecutive quarterly installments,
commencing on March 31, 1999, each of which shall be in an amount equal to
such Lender's New Term Loan Percentage multiplied by the amount set forth
below opposite such installment:
Installment Principal Amount
1-4 $323,000
5-8 $517,000
9-12 $711,000
13-16 $949,000
(b) Clause (iii) of subsection 2.8(a) of the Credit Agreement is
hereby amended by deleting said clause in its entirety and substituting in
lieu thereof the following:
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(iii)(A) the principal amount of each Term Loan of such Term
Loan Lender in installments according to the amortization schedule set
forth in Section 2.3 and (B) the principal amount of each New Term Loan of
such New Term Loan Lender in installments according to the amortization
schedule set forth in Section 2.3A (or, in either case, on such earlier
date on which the Loans become due and payable pursuant to Section 8).
(c) Subsection 2.8(e) is hereby amended by adding thereto "or New
Term Loans" immediately after the phrase "Term Loans".
(d) Section 2.11 is hereby amended by adding thereto ", New Term
Loans" immediately after the phrase "Term Loans".
(e) Subsections 2.12(a) through (c) are hereby amended by adding
thereto "and the New Term Loans" immediately after the phrase "Term Loans"
in each place where the latter phrase appears.
(f) Subsection 2.12(d) is hereby amended by adding thereto "and the
New Term Loans, ratably between them in accordance with the then
outstanding principal amounts thereof," immediately after the phrase "Term
Loans".
(g) Subsection 2.18(a) is hereby amended by adding thereto ", New
Term Loan Percentages" immediately after the phrase "Term Loan
Percentages".
(h) Subsection 2.18(b) is hereby amended by adding thereto "(i)"
immediately prior to the first sentence thereof and the following clause
(ii) immediately after the last sentence thereof:
(ii) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the New Term Loans shall be
made PRO RATA according to the respective outstanding principal
amounts of the New Term Loans then held by the New Term Loan Lenders.
The amount of each principal prepayment of the New Term Loans shall
be applied to reduce the then remaining installments of the New Term
Loans PRO RATA based upon the then remaining principal amount
thereof, PROVIDED that any prepayment pursuant to Section 2.11 may be
applied, at the option of the Borrower, either (x) FIRST to the next
two then scheduled installments of the New Term Loans, and, SECOND,
PRO RATA to each of the remaining installments of the New Term Loans,
based upon the then remaining principal amounts thereof, or (y) PRO
RATA to the remaining installments, based upon the then remaining
principal amounts thereof. Amounts prepaid on account of the New Term
Loans may not be reborrowed.
3. AMENDMENTS TO SECTION 7. (a) Section 7.2(i) of the Credit
Agreement is hereby amended by adding thereto the following proviso after the
number "$7,500,000" and prior to the period:
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"; and PROVIDED FURTHER, that (x) the hold-back or escrow of
DM3,800,000 pursuant to the Rotec Acquisition Agreement and (y)
approximately $1,000,000 of outstanding debt of Rotec shall be
permitted to remain outstanding following the closing of the Rotec
Acquisition pursuant to this subsection 7. 1 (i) but shall not be
included in the $7,500,000 of Indebtedness permitted to be incurred
pursuant to clause (iv) of this subsection 7.1(i)"
(b) Section 7.8 of the Credit Agreement is hereby amended by adding
thereto the following subsection after subsection 7.8(o):
(p)(i) the Rotec Acquisition, PROVIDED that the aggregate
consideration payable in connection therewith shall not exceed
DM37,000,000.
(c) Subsection 7.16 of the Credit Agreement is hereby amended by
deleting said subsection in its entirety and substituting in lieu thereof
the following:
7.16 LIMITATION ON AMENDMENTS TO ACQUISITION DOCUMENTS. (a)
Amend, supplement or otherwise modify (pursuant to a waiver or
otherwise) in any material respect the terms and conditions of the
Acquisition Agreement or any other document delivered by the Sellers
or any of their affiliates in connection therewith such that after
giving effect thereto such terms and conditions shall be materially
less favorable to the interests of the Loan Parties or the Lenders
with respect thereto or (b) amend, supplement or otherwise modify
(pursuant to a waiver or otherwise) in any material respect the terms
and conditions of the Rotec Acquisition Agreement or any other
document delivered by Rotec in connection therewith such that after
giving effect thereto such terms and conditions shall be materially
less favorable to the interests of the Loan Parties or the Lenders
with respect thereto.
4. AMENDMENT TO ANNEX AND SCHEDULES. Annex A and Schedules 1.1A, 4.4
and 4.15 to the Credit Agreement and Schedules 2 and 4 to the Guarantee and
Collateral Agreement are hereby amended by deleting said Annex A and Schedules
in their entireties and substituting in lieu thereof new Annex A and Schedules
1.1A, 4.4 and 4.15 in the forms of Annex A and Schedules 1.1A, 4.4 and 4.15,
respectively, to this Amendment.
III. AMENDMENTS TO GUARANTEE AND COLLATERAL AGREEMENT. Schedule 2 of
the Guarantee and Collateral Agreement is hereby amended by deleting said
Schedule in its entirety and substituting in lieu thereof a new Schedule 2 in
the form of Guarantee and Collateral Schedule 2 to this Amendment.
IV. CONDITIONS TO EFFECTIVENESS. The provisions of Sections II and
III of this Amendment shall become effective on the date (the "EFFECTIVE DATE")
on which all of the following conditions precedent have been satisfied or waived
(PROVIDED, HOWEVER, that if such conditions precedent shall not have occurred on
or before
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December 31, 1998, this Amendment shall terminate and no longer have any force
or effect):
1. LOAN DOCUMENTS. The Administrative Agent shall have received this
Amendment, executed and delivered by a duly authorized officer of the Borrower
and the Required Lenders.
2. ROTEC ACQUISITION, ETC. The Administrative Agent shall have
received a copy of the Rotec Acquisition Agreement, which shall be in form and
substance reasonably satisfactory to the Administrative Agent, and evidence, in
form and substance satisfactory to the Administrative Agent, that the Rotec
Acquisition shall have been completed in accordance with the provisions of the
Rotec Acquisition Agreement (without any waiver of any of the terms and
conditions thereof such that after giving effect thereto such terms and
conditions shall be materially less favorable to the interests of the Loan
Parties or the Lenders with respect thereto) and that the consideration for such
Rotec Acquisition shall consist of not more than DM37,000,000, all of which
shall consist of cash and/or the assumption of debt (which assumption of debt
shall not exceed DM2,500,000).
3. APPROVALS. All governmental and third party approvals necessary
or, in the discretion of the Administrative Agent, advisable, in connection with
the Rotec Acquisition, the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
Rotec Acquisition or the financing contemplated hereby.
4. EQUITY INVESTMENT. The Administrative Agent shall have received,
with a copy for each Lender, evidence, in form and substance satisfactory to it,
that the Borrower shall have received subsequent to the date hereof at least
$7,000,000 of net proceeds from an investment in its common equity, or a capital
contribution, made directly or indirectly by the Sponsors.
5. FEES. The Lenders and the Administrative Agent shall have received
all fees required to be paid (including, without limitation, the amendment fee
specified in Section V(3) below), and all expenses for which invoices have been
presented, on or before the Effective Date.
6. RESOLUTIONS. The Administrative Agent shall have received, with a
counter part for each Lender, resolutions of the Borrower authorizing (i) the
execution, delivery and performance of this Amendment, the other Loan Documents
and the Rotec Acquisition Agreement, (ii) the borrowings contemplated hereunder
and (iii) the Rotec Acquisition.
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7. LEGAL OPINIONS. The Administrative Agent shall have received, with
a counterpart for each Lender, (i) the legal opinion of Debevoise & Xxxxxxxx,
special counsel to the Borrower and its Subsidiaries, in form and substance
satisfactory to the Administrative Agent and (ii) the legal opinion of
Bruckhaus, Xxxxxxxx, Xxxxxx & Xxxxx, special German counsel to the Borrower and
its Subsidiaries, in form and substance satisfactory to the Administrative
Agent.
8. PLEDGE OF ROTEC STOCK, ETC. The Administrative Agent shall have
received evidence, in form and substance satisfactory to it, that the
requirements of Section 6.9(d) with respect to Rotec shall have been completed
or will be completed immediately following the Effective Date.
V. GENERAL.
1. REPRESENTATION AND WARRANTIES. To induce the Administrative Agent
and the Lenders parties hereto to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and all of the Lenders as of
the Effective Date that:
A. FINANCIAL CONDITION. (i) The unaudited PRO FORMA consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at
October 31, 1998 (the "PRO FORMA BALANCE SHEET"), copies of which have
heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of
the Rotec Acquisition (but without giving effect to any financial results
of Rotec Czech s.r.o. Vyorba ("ROTEC CZECH")) (ii) the Loans to be made
and the equity investments to be received on the Effective Date and the
use of proceeds thereof and (iii) the payment of the estimated fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet
has been prepared based on the best information available to the Borrower
as of the date of delivery thereof, and presents fairly, in all material
respects, on a PRO FORMA basis the estimated financial position of
Borrower and its consolidated Subsidiaries as at October 31, 1998,
assuming that the events specified in the preceding sentence had actually
occurred at such date.
(ii) The annual financial statement (including a balance sheet
and profit-and-loss account) of Rotec (which exclude any financial results
of Rotec Czech) for the fiscal year 1997 (hereinafter referred to as the
"Annual Statement") which have previously been delivered to the
Administrative Agent have been duly prepared in accordance with generally
accepted German accounting principles, and present a true and fair view of
the assets, finance and results situation of Rotec as of December 31, 1997
(but do not give effect to the financial results of Rotec Czech). To the
extent that there have been options to include items in the assets
(Aktivierungswahlrechte), no such items have been included on the balance
sheet in the Annual Statement. To extent that there have been options to
include items in the liabilities (Passivierungswahlrechte), such items
have been included on the balance
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sheet in the Annual Statement. All statutorily permitted depreciations
and all statutorily permitted accruals have been taken. There have
been no contingent liabilities (including liabilities from the issue of
comfort letters) which were not reflected as below-the-line items on the
balance sheet in the Annual Statement. On the closing date of the Rotec
Acquisition, Rotec will have no liabilities other than those shown or
covered by accruals in the interim balance sheet as of October 31, 1998
which has been previously delivered to the Administrative Agent, except
for liabilities resulting from pending contractual relationships which
are not required to be shown on a balance sheet (and without giving
effect to such financial information of Rotec Czech). Since October 31,
1998 and until the Effective Date, the business operations of Rotec and
its Subsidiaries have been and will be, respectively, conducted
exclusively in the ordinary course of business (in particular with
respect to but not limited to a disposal of a material portion of its
assets).
B. NO CONSENTS, AUTHORIZATIONS, ETC. No consent or authorization
of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with
the Rotec Acquisition and the borrowings under the Credit Agreement as
amended hereby or with the execution, delivery, performance, validity or
enforceability of this Amendment, except consents, authorizations, filings
and notices described in Schedule 4.4 hereto, which consents,
authorizations, filings and notices have been obtained or made and are in
full force and effect.
C. USE OF PROCEEDS. The proceeds of the New Term Loans shall be
used to finance the Rotec Acquisition and to pay related fees and
expenses. With reference to Section 4.16 of the Credit Agreement, the
proceeds of the Revolving Credit Loans which will be used to finance the
Rotec Acquisition are being considered as used for "general corporate
purposes."
D. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower in the Loan Documents are true and correct
in all material respects on and as of the Effective Date, before and after
giving effect to the effectiveness of this Amendment, as if made on and as
of the Effective Date (except for representations and warranties which
expressly relate to an earlier date and except for representations and
warranties that relate to Holdings and Sisterco, which shall not be
"brought-down" in any respect).
2. PAYMENT OF EXPENSES. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
3. AMENDMENT FEE. The Borrower agrees to pay for the account of each
Lender an amount equal to .25% of the aggregate outstanding principal amount of
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such Lender's Term Loans and the aggregate outstanding principal amount, if any,
of such Lender's Revolving Credit Commitments, measured in each case as of the
Effective Date.
4. NO OTHER AMENDMENTS: CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and the
other Loan Documents are and shall remain in full force and effect.
5. AFFIRMATION OF GUARANTEES. Each Guarantor hereby consents to the
execution and delivery of this Amendment and reaffirms its obligations under the
Guarantee and Collateral Agreement executed by such Guarantor. Each Guarantor
also hereby agrees and consents to the amendment of Schedules 2 and 4 to the
Guarantee and Collateral Agreement.
6. GOVERNING LAW; COUNTERPARTS. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Borrower and the Administrative Agent. This Amendment
may be delivered by facsimile transmission of the relevant signature pages
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
DAY INTERNATIONAL GROUP, INC.
By:
Title:
DAY INTERNATIONAL, INC.
By:
Title:
SOCIETE GENERALE, as Administrative
Agent and as a Lender
By:
Title:
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FUJI BANK LIMITED
By:
Title:
THE BANK OF NOVA SCOTIA-CHICAGO
By:
Title:
NATEXIS BANK
By:
Title:
BANK ONE
By:
Title:
PNC BANK
By:
Title:
NATIONAL CITY BANK
By:
Title:
ANNEX A
PRICING GRID FOR REVOLVING CREDIT LOANS,
SWING LINE LOANS AND TERM LOANS
CONSOLIDATED APPLICABLE MARGIN APPLICABLE MARGIN FOR BASE
LEVERAGE RATIO FOR EURODOLLAR LOANS RATE LOANS
>4.00 to 1 2.00 1.00
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<=4.00 to 1 1.75 .75
>3.50 to 1
<=3.50 to 1 1.50 .50
>3.00 to 1
<=3.00 to 1 1.25 .25
>2.50 to 1
<=2.50 to 1 1.00 ---
PRICING GRID FOR NEW TERM LOANS
CONSOLIDATED APPLICABLE MARGIN APPLICABLE MARGIN FOR BASE
LEVERAGE RATIO FOR EURODOLLAR LOANS RATE LOANS
>4.00 to 1 3.00 2.00
<=4.00 to 1 2.75 1.75
>3.50 to 1
<=3.50 to 1 2.50 1.50
>3.00 to 1
<=3.00 to 1 2.25 1.25
>2.50 to 1
<=2.50 to I 2.00 1.00
Changes in the Applicable Margin with respect to Term Loans and New Term Loans
resulting from changes in the Consolidated Interest Coverage Ratio and the
Consolidated Leverage Ratio shall become effective on the date (the "ADJUSTMENT
DATE") on which financial statements are delivered to the Lenders pursuant to
Section 6.1 (but in any event not later than the 45th day after the end of each
of the first three quarterly periods of each fiscal year or the 90th day after
the end of each fiscal year, as the case may be) and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified above, then, until such financial statements are delivered, the
Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be deemed greater
than 4.00 to 1. In addition, at all times while an Event of Default shall have
occurred and be continuing, the Consolidated Leverage Ratio shall for the
purposes of this definition be deemed to be greater than 4.00 to 1. If on any
Adjustment Date the Consolidated Leverage Ratio would result in different
Applicable Margins, the higher Applicable Margin shall govern. Each
determination of the Consolidated Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal quarters of
the Borrower ending at the end of the period covered by the relevant financial
statements.
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SCHEDULE 1.1A
COMMITMENTS
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REVOLVING TERM LOAN NEW TERM
LENDER CREDIT LOAN
SOCIETE GENERALE $3,478,260.86 $4,869,565.22 $10,000,000.00
NATIONAL CITY BANK $3,391,304.37 $4,747,826.09 --
PNC BANK $3,391,304.37 $4,747,826.09 --
BANK ONE $2,434,782.60 $3,408,695.65 --
FUJI BANK LIMITED $2,434,782.60 $3,408,695.65 --
THE BANK OF NOVA
SCOTIA - CHICAGO $2,434,782.60 $3,408,695.65 --
NATEXIS BANQUE BFCE $2,434,782.60 $3,408,695.65 --
------------- ------------- --------------
TOTAL: $20,000,000.00 $28,000,000 $10,000,000.00
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
---------------------------------------------
1. Clearing by of the acquisition of shares of Rotec Hulsensysteme GmbH
("Rotec") by the German Federal Cartel Office, which was obtained on
December 16, 1998.
2. Approval of the share transfer of Rotec by the management of Rotec, which
approval was given by the Sellers in their capacity as managing directors.
SUBSIDIARIES
------------
U.S. Entities
-------------
1. Day International, Inc.
2. Day Holdings I, Inc.
3. Day Holdings II, Inc.
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Offshore Entities
-----------------
1. Day International (UK) Holdings
2. Day International (UK) Limited
3. Day International (BRD) GmbH
4. Day International France S.A.R.L.
5. Day International de Mexico, S.A. De C.V.
6. International (Canada) Holdings Limited
7. Xxxxxxxx Grafico Mexicano, S.A.
8. Day German Holdings GmbH
9. Day International Group GmbH
10. Rotec Hulsensysteme GmbH
11. Day International ZAO
DESCRIPTION OF PLEDGED SECURITIES
---------------------------------
DAY INTERNATIONAL GROUP, INC.
STOCK NUMBER OF
PLEDGED STOCK: CLASS OF STOCK CERTIFICATE NO. SHARES
-------------- -------------- --------------- ------
Day International, Inc. Common 4 2
DAY INTERNATIONAL, INC.*
STOCK NUMBER OF
PLEDGED STOCK: CLASS OF STOCK CERTIFICATE NO. SHARES
-------------- -------------- --------------- ------
Day Holdings I, Inc. Common 1 1,000
Day Holdings II, Inc. Common 1 1,000
*Day International (BRD) GmbH Common ? 95,000
*Day International (BRD) GmbH Common ? 5,000
*Day International (BRD) GmbH Common ? 500,000
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*Day International France Common ? 17,800,000FF
S.A.R.L.
Day International de Mexico, S.A. Minimum Shares 01 3,000
De C.V.
Day International de Mexico, S.A. Variable Shares 01 466,609
De C.V.
Day International de Mexico, S.A. Variable Shares 02 1
De C.V.
Day International de Mexico, S.A. Variable Shares 03 1
De C.V.
Day International de Mexico, S.A. Variable Shares 04 1
De C.V.
Day International de Mexico, S.A. Variable Shares 05 1
De C.V.
International (Canada) Holdings Common C-1 1
Limited
International (Canada) Holdings Common C-3 1
Limited
Day Germany Holdings GmbH Common N/A 50,000
NEW TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$10,000,000.00 New York, New York
December 23, 1998
FOR VALUE RECEIVED, the undersigned, DAY INTERNATIONAL GROUP, INC., a
Delaware corporation (the "BORROWER"), hereby unconditionally promises to pay to
SOCIETE GENERALE (the "LENDER") or its registered assigns at the Payment Office
specified in the Credit Agreement (as hereinafter defined) in lawful money of
the United States and in immediately available funds, the principal amount of
(a) TEN MILLION DOLLARS ($10,000,000.00), or, if less, (b) the unpaid principal
amount of the New Term Loan made by the Lender pursuant to Section 2.1A of the
Credit Agreement. The principal amount shall be paid in the amounts and in the
installments specified in Section 2.3A of the Credit Agreement. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal
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amount hereof from time to time outstanding at the rates and on the dates
specified in Section 2.15 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the New
Term Loan and the date and amount of each payment or prepayment of principal
with respect thereto, each conversion of all or a portion thereof to another
Type, each continuation of all or a portion thereof as the same Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
or any error in any such endorsement shall not affect the obligations of the
Borrower in respect of the New Term Loan.
This Note (a) is one of the New Term Notes referred to in the Credit
Agreement dated as of January 15, 1998, as amended by the First Amendment, dated
as of December 17, 1998 (as further amended, supplemented or otherwise modified
from time to time, the "Credit AGREEMENT"), among the Borrower, the Lender, the
other banks and financial institutions or entities from time to time parties
thereto, Societe Generale, as Administrative Agent and Societe Generale
Securities Corporation, as Arranger, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement. This Note is secured and
guaranteed as provided in the Loan Documents. Reference is hereby made to the
Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one or more of the Events of Default, all
principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE
CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
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THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
DAY INTERNATIONAL GROUP, INC.
By:
Name:
Title:
Schedule A
TO NEW TERM NOTE
LOANS, CONVERSIONS, AND REPAYMENTS OF BASE RATE LOANS
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AMOUNT OF AMOUNT OF BASE
AMOUNT PRINCIPAL OF BASE RATE LOANS UNPAID PRINCIPAL
AMOUNT OF BASE RATE CONVERTED TO RATE LOANS CONVERTED TO BALANCE OF BASE NOTATION MADE
DATE LOANS BASE RATE LOANS REPAID EURODOLLAR LOANS RATE LOANS BY
---- ----- --------------- ------ ---------------- ---------- --
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Schedule B
TO NEW TERM NOTE
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
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AMOUNT OF
INTEREST PERIOD EURODOLLAR UNPAID
AMOUNT AND EURODOLLAR AMOUNT OF LOANS PRINCIPAL
AMOUNT OF CONVERTED TO RATE WITH PRINCIPAL OF CONVERTED TO BALANCE OF
EURODOLLAR EURODOLLAR RESPECT EURODOLLAR BASE RATE EURODOLLAR NOTATION
DATE LOANS LOANS THERETO LOANS REPAID LOANS LOANS MADE BY
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