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EXHIBIT 10.3
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of September 8, 1999
(the "Second Amendment") is made by and among CHASE INDUSTRIES INC. (formerly,
"Chase Brass Industries, Inc."), a Delaware corporation (the "Borrower"), the
Guarantors and the Banks referred to in the Credit Agreement (as defined below)
and PNC BANK, NATIONAL ASSOCIATION, a national banking association, as agent for
the Banks under the Credit Agreement (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent are parties
to that certain Credit Agreement dated as of August 30, 1996, as amended (as
hereafter amended, the "Credit Agreement");
WHEREAS, the parties to the Credit Agreement desire to amend the provisions
thereof as set forth herein;
WHEREAS, capitalized terms used herein and not otherwise defined herein and
defined in the Credit Agreement shall have meanings assigned to them in the
Credit Agreement.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Amendments to Credit Agreement Deleting the Borrowing Base Requirement.
The Borrowing Base requirements in the Credit Agreement are hereby deleted
therefrom. The parties make the following amendments to remove such
requirements:
A. Defined Terms (Section 1.1).
The following defined terms are hereby deleted from Section 1.1 of the
Credit Agreement
Account Debtor
Borrowing Base
Borrowing Base Certificate
Inventory
Qualified Accounts
Qualified CBCC Inventory
Qualified Inventory
Qualified Xxxxxxx Inventory
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B. Revolving Credit Commitments and Swing Loans (Section 2.1).
Section 2.1 is hereby amended and restated to read as follows:
"2.1 Revolving Credit Loans and Swing Loans.
(a) Revolving Credit Commitments.
Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each Bank
severally agrees to make Revolving Credit Loans to the Borrower at
any time or from time to time on or after the date hereof to, but
not including, the Expiration Date in an aggregate principal amount
not to exceed at any one time outstanding to the Borrower such
Bank's Revolving Credit Commitment less such Bank's Revolving
Credit Ratable Share of the Letter of Credit Outstandings and
provided that the Revolving Facility Usage may never exceed the
Revolving Credit Commitments.
(b) Swing Loans.
Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, and in
order to facilitate Revolving Credit Loans and repayments between
Settlement Dates in aggregate amounts of $5,000,000 or less, PNC
shall make Swing Loans (the "Swing Loans") to the Borrower at any
time or from time to time after the date hereof to, but not
including, the Expiration Date in an aggregate principal amount up
to but not in excess of the Swing Loan Maximum, subject to Section
7 and to the following provisions. As of each Settlement Date so
long as the Borrower has the right to borrow under this Section
2.1(b), a portion of PNC's Revolving Credit Loans to the Borrower
equal to the lesser of $5,000,000 or the aggregate amount of PNC's
Revolving Credit Loans shall be designated by PNC as Swing Loans.
PNC shall make Swing Loans between Settlement Dates, provided that
the aggregate amount of all Swing Loans shall not exceed the Swing
Loan Maximum (which permits the aggregate principal amount of PNC's
Swing Loans and PNC's Revolving Credit Loans to exceed PNC's
Revolving Credit Ratable Share of the Revolving Credit Loans
(including any Revolving Credit Loans designated by PNC as Swing
Loans) by up to $5,000,000)Within such limits of time and amount
and subject to the provisions of this Agreement, the Borrower may
borrow, repay and reborrow pursuant to this Section 2.1(b).
C. Issuance of Letters of Credit (Section 2.10).
Clause (c) of the first sentence of Section 2.10 (Issuance of Letters
of Credit) is hereby amended and restated to read as follows:
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"(c) the amount of the Revolving Facility Usage does not
exceed the Revolving Credit Commitments at such time."
D. Mandatory Prepayments (Sections 5.7(a) and (b)).
Sections 5.7(a) (Mandatory Prepayments--Borrowing Base Exceeded) and
5.7(b) (Mandatory Prepayments--Excess Cash Flow) are hereby deleted.
E. Reporting Requirements - Monthly Borrowing Base Certificate.
Clause (i) of Section 8.3(d)(Monthly Reporting--Borrowing Base
Certificate) is hereby deleted.
F. Schedules of Qualified Accounts and Qualified Inventory.
The following schedules to the Credit Agreement are hereby deleted:
Schedule 1.1(Q)(1) - Qualified Accounts
Schedule 1.1(Q)(2) - Qualified Inventory
2. Amendments to Credit Agreement and other provisions to increase the
Commitments.
A. Amendment to Schedule 1.1(B) - Commitments of the Banks.
Schedule 1.1(B) is hereby amended and restated to read as set forth on
Schedule 1.1(B) hereto. The Borrower, the Agent and the Banks hereby (i) approve
of the increase in the Revolving Credit Commitments as set forth on such
Schedule 1.1(B) (i.e. from $40,000,000 to $50,000,000), and (ii) consent to and
approve of the addition of Fifth Third Bank, Northwestern Ohio, N.A. ("Fifth
Third") as a Bank under the Credit Agreement with a Revolving Credit Commitment
of $10,000,000 and a Term Loan Commitment of $0 as set forth on such Schedule
1.1(B).
B. Joinder of Fifth Third.
Fifth Third, by signing this Second Amendment agrees that it joins the
Credit Agreement and each of the other Loan Documents as a Bank thereunder with
a Revolving Credit Commitment as set forth on Schedule 1.1(B) attached hereto
and with no Term Loan Commitment. Fifth Third assumes all of the rights and
obligations of a Bank under the Loan Documents and agrees to perform, comply
with and be bound by each of the provisions of the Credit Agreement which are
stated to apply to a Bank and shall be entitled to the benefits, rights and
remedies set forth therein. Fifth Third hereby acknowledges that it has
heretofore received a true and correct copy of the Credit Agreement and the
other Loan Documents and the executed original of its Revolving Credit Note
issued by Borrower under the Agreement in the face amount of its Revolving
Credit Commitment. The address for notices to Fifth Third is set forth on
Schedule 1.1(B).
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C. Participation in Letters of Credit; Repayment of Loans and Reborrowing.
(a) Participation in Letters of Credit.
On the Effective Date (as hereafter defined) of this Second
Amendment, Fifth Third hereby participates in each outstanding Letter of Credit
in accordance with its Revolving Credit Ratable Share as more fully described in
Section 2.10 of the Credit Agreement.
(b) Repayment and Reborrowing of Revolving Credit Loans.
On the Effective Date (as hereafter defined) of this Second
Amendment, the Borrower shall repay all outstanding Revolving Credit Loans and
may reborrow Revolving Credit Loans on the same date. The Banks will not require
the Borrower to indemnify the Banks for repaying any Revolving Credit Loans
under the Euro-Rate Option before the expiration of the applicable Interest
Period (commonly referred to as "breakage") pursuant to Section 5.5(b)
(Indemnity) of the Credit Agreement. Fifth Third and each of the other Banks
shall make Loans requested by the Borrower on the Effective Date (as hereafter
defined) in accordance with their Revolving Credit Ratable Share after giving
effect to the joinder by Fifth Third pursuant to this Second Amendment.
D. Technical Fixes to the Credit Agreement to Reflect that the Ratable
Shares of the Banks in the Revolving Credit Loans Will Not Equal the Ratable
Shares of the Banks in the Term Loans After Fifth Third Joins the Credit
Agreement.
(a) Defined Terms (Section 1.1).
(i) Amended Terms.
The following defined terms are hereby amended and restated to
read as set forth below:
"Aggregate Ratable Share shall mean the proportion that a
Bank's Commitment bears to the Commitments of all the Banks.
Required Banks shall mean Banks whose Commitments aggregate at
least 66 2/3% of the Commitments of all of the Banks.
Swing Loan Maximum shall mean the commitment of PNC to make
Swing Loans to the Borrower at Borrower's request pursuant to Section
2.1(b) hereof in an aggregate principal amount of up to but not in
excess of $5,000,000 at any one time outstanding, provided that in no
event shall the sum of all Swing Loans and Revolving Credit Loans made
by PNC exceed PNC's Revolving Credit Ratable Share of the Revolving
Credit Loans (including any Revolving Credit Loans designated by PNC as
Swing Loans) by more than $5,000,000
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Term Loan Commitment shall mean, as to any Bank at any time,
the amount of Term Loans outstanding, and Term Loan Commitments shall
mean the aggregate Term Loans of all of the Banks."
(ii) New Terms.
The following defined new terms are hereby added in
alphabetical order to Section 1.1 of the Credit Agreement:
"Revolving Credit Ratable Share shall mean the proportion that
a Bank's Revolving Credit Commitment bears to the Revolving Credit
Commitments of all the Banks.
Term Loan Ratable Share shall mean the proportion that a
Bank's Term Loan Commitment bears to the Term Loan Commitments of all
the Banks."
(b) References to Ratable Share.
The term "Revolving Credit Ratable Share" shall be inserted in
lieu of the term "Ratable Share" in each of the following instances in which the
term "Ratable Share" appears in the Credit Agreement:
Section Title of Section Place Where Term is Used
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2.1(a) Revolving Credit Commitments First Sentence
2.1(b) Swing Loans Second Sentence
2.2 Nature of Banks' Obligations with First and Second Sentences
Respect to Revolving Credit Loans
2.9 Borrowings to Repay Swing Loans. Second Sentence
2.11 Participation Interest in Letters of Credit First Sentence
5.6 Settlement Date Procedures Everywhere where used--
numerous sentences
The term "Aggregate Ratable Share" shall be inserted in lieu of
the term "Ratable Share" in each of the following instances in which the term
"Ratable Share" appears in the Credit Agreement:
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Section Title of Section Place Where Term is Used
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10.7 Reimbursement and Indemnification First and Second Sentences
of Agent by Banks.
(c) Letter of Credit Fees (Section 2.15).
The first sentence of Section 2.15 (Fees with Respect to Letters
of Credit) is hereby amended and restated to read as follows:
"The Borrower agrees to pay to the Agent for the accounts of the
Banks, allocated according to their Revolving Credit Ratable Shares, a
fee for Letters of Credit from time to time outstanding, computed on
the average daily amount of Letters of Credit Outstandings at the rate
per annum equal to the Revolving Credit Euro-Rate Spread (computed on
the basis of a year of 365 or 366 days, as the case may be, and actual
days lapsed)."
(d) Term Loans (Section 3).
Sections 3.1 and 3.2 of the Credit Agreement are hereby amended
and restated to read as follows:
"3.1 Term Loan Commitments.
The Banks made term loans (the "Term Loans")to the Borrower
on the Closing Date.
3.2 Nature of Banks' Obligations with Respect to Term Loans.
The Banks have no obligation to make and the Borrower shall
have no right to borrow any additional Term Loans. "
The first sentence of Section 3.3 (Term Loan Notes)is hereby
amended and restated to read as follows:
"The Obligation of the Borrower to repay the unpaid principal
amount of the Term Loans made to it by each Bank, together
with interest thereon, shall be evidenced by a Term Note dated
the Closing Date payable to the order of each Bank in a face
amount equal to initial principal amount of the Term Loan of
such Bank."
(e) Payments (Section 5).
Sections 5.1 and 5.2 are hereby amended and restated to read as
follows:
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"5.1 Payments.
All payments and prepayments to be made in respect of
principal, interest, Commitment Fees, Agent's Fees, fees and
commissions with respect to Letters of Credit or other amounts due
from the Borrower hereunder shall be payable prior to 12:00 noon
Pittsburgh time on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly
waived by the Borrower, and without setoff, counterclaim or other
deduction of any nature, and an action therefor shall immediately
accrue. Such payments shall be made to the Agent at the Principal
Office for the account of PNC with respect to the Swing Loans and for
the accounts of the Banks with respect to the Revolving Credit Loans
and the Term Loans allocated according to the amount of such Loans
held by the Banks in U.S. Dollars and in immediately available funds,
and the Agent shall promptly distribute such amounts to the Banks in
immediately available funds, provided that in the event payments are
received by 12:00 noon Pittsburgh time by the Agent with respect to
the Loans and such payments are not distributed to the Banks on the
same day received by the Agent, the Agent shall pay the Banks the
Federal Funds Effective Rate during the first five (5) calendar days
and the Federal Funds Effective Rate plus two percent (2%) thereafter
with respect to the amount of such payments for each day held by the
Agent and not distributed to the Banks. The Agent's and each Bank's
statement of account, ledger or other relevant record shall, in the
absence of manifest error, be conclusive as the statement of the
amount of principal of and interest on the Loans and other amounts
owing under this Agreement and shall be deemed an "account stated."
5.2 Pro Rata Treatment of Banks.
Each borrowing, and each selection of, conversion to or
renewal of any Interest Rate Option, and each payment or prepayment by
the Borrower with respect to principal and interest on the Revolving
Credit Loans and the Commitment Fees and the fees and commissions with
respect to Letters of Credit or other amounts due from the Borrower
hereunder to the Banks with respect to Revolving Credit Loans shall
(except as provided in Section 4.4(b), 5.4(b) or 5.5(a) hereof) be
made in proportion to the amount of such Revolving Credit Loans
outstanding from each Bank and, if no such Revolving Credit Loans are
then outstanding, in proportion to the Revolving Credit Ratable Share
of each Bank. Each borrowing, and each selection of, conversion to or
renewal of any Interest Rate Option, and each payment or prepayment by
the Borrower with respect to principal and interest on the Term Loans
or other amounts due from the Borrower hereunder to the Banks with
respect to Term Loans shall (except as provided in Section 4.4(b),
5.4(b) or 5.5(a) hereof) be made in proportion to the amount of such
Term
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Loans outstanding from each Bank and, if no such Term Loans are then
outstanding, in proportion to the Term Loan Ratable Share of each
Bank.
3. Amendments to Credit Agreement Updating Representations and Warranties.
A. Capitalization and Ownership (Section 6.1(b)).
Section 6.1(b) is hereby amended and restated to read as set forth
below:
(b) Capitalization and Ownership.
The authorized capital stock of Borrower consists of
36,310,000 shares of Voting Common Stock, which are issued, outstanding
and owned as indicated on Schedule 6.1(b) hereto, 12,300,000 shares of
Nonvoting Common Stock, 6,150,118 of which are issued and outstanding
and 1,000,000 shares of preferred stock (collectively "Borrower
Shares"), none of which are issued and outstanding. There are no
options, warrants or other rights outstanding to purchase any such
Borrower Shares, except pursuant to the Company's 1994 Long Term
Incentive Plan, 1997 Non-Employee Director Stock Option Plan and 1997
Executive Deferred Compensation Stock Option Plan. Borrower is not a
party to any agreement respecting the right of the holders of the
Borrower Shares to vote such Borrower Shares, except for the Voting
Agreement of CVC and MVA. The Borrower has delivered a true and correct
copy of the Voting Agreement to the Agent.
B. Schedules To Credit Agreement.
The following schedules to the Credit Agreement are hereby amended and
restated in the forms attached hereto:
Schedule 1.1(B) - Commitments Of The Banks
Schedule 6.1(b) - Holders Of Common Stock Of Borrower
Schedule 6.1(h) - Litigation
Schedule 11.6 - Notices
4. Conditions of Effectiveness of Amendment.
This Second Amendment shall be effective on the date (the "Effective Date")
on which each of the Borrower, the Guarantors, the Banks and the Agent have
executed this Second Amendment and all of the following conditions have been
satisfied:
A. Revolving Credit Note.
The Borrower shall have executed and delivered to Fifth Third a
Revolving Credit Note in principal amount equal to Fifth Third's Revolving
Credit Commitment.
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B. Secretary's Certificate.
There shall be delivered to the Agent for the benefit of each Bank a
certificate dated the effective date of this Second Amendment and signed by the
Secretary or an Assistant Secretary of each of the Loan Parties, certifying as
appropriate as to:
(i) all action taken by each Loan Party in connection with this Second
Amendment and; and
(ii) the names of the officer or officers authorized to sign this
Second Amendment and the true signatures of such officer or officers.
C. Opinion of Counsel.
There shall be delivered to the Agents for the benefit of each Bank
written opinion of counsel for the Borrower and its Subsidiaries dated as of the
effective date of this Second Amendment and in form and substance satisfactory
to the Agents and their counsel as to the matters set forth in Exhibit 4(C)
hereto.
D. Fees and Expenses.
The Borrower shall have paid to the Agent and the Banks any fees,
including legal fees, or expenses payable under the Loan Documents.
5. References to Credit Agreement; Inconsistency.
On and after the effective date of this Second Amendment, any reference to
the Credit Agreement in any document, instrument, or agreement shall hereafter
mean and include the Credit Agreement as amended hereby. In the event of
inconsistency between the terms or provisions hereof and the terms or provisions
of the Credit Agreement or any Loan Document, the terms and provisions hereof
shall control.
6. Force and Effect.
Each of the Guarantors and the Borrower reconfirms, restates, and ratifies
the Credit Agreement and all other documents executed in connection therewith
except to the extent any such documents are expressly modified by this Second
Amendment and confirms that all such documents have remained in full force and
effect since the date of their execution.
7. Governing Law.
This Second Amendment shall be deemed to be a contract under the laws of
the Commonwealth of Pennsylvania and for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the Commonwealth
of Pennsylvania without regard to its conflict of laws principles.
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8. Counterparts.
This Second Amendment may be signed in any number of counterparts each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 3 TO SECOND AMENDMENT]
BORROWER:
CHASE INDUSTRIES INC.
By: /s/ M. T. XXXXXXXX
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Name: M. T. Xxxxxxxx
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Title: CFO
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GUARANTORS:
CHASE BRASS & COPPER COMPANY, INC.
By: /s/ M. T. XXXXXXXX
--------------------------------
Name: M. T. Xxxxxxxx
--------------------------------
Title: CFO
--------------------------------
XXXXXXX TUBE COMPANY, INC.
By: /s/ M. T. XXXXXXXX
--------------------------------
Name: M. T. Xxxxxxxx
--------------------------------
Title: CFO
--------------------------------
HOLCO CORPORATION
By: /s/ M. T. XXXXXXXX
--------------------------------
Name: M. T. Xxxxxxxx
--------------------------------
Title: CFO
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[SIGNATURE PAGE 2 OF 3 TO SECOND AMENDMENT]
AGENT AND BANKS:
PNC BANK, NATIONAL ASSOCIATION,
individually and as the Agent
By: /s/ XXXX X. XXXXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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ABN AMRO BANK N.V.
By: /s/ XXXXXXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
COMERICA BANK
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Account Officer
--------------------------------
FIFTH THIRD BANK, NORTHWESTERN OHIO, N.A.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------
Title: Senior Vice President
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[SIGNATURE PAGE 3 OF 3 TO SECOND AMENDMENT]
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ XXXXXXXX X. XXXXXXXXX
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Name: Xxxxxxxx X. XxXxxxxxx
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Title: Director
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BANK ONE, MICHIGAN
(f/k/a NBD Bank)
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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FIRSTAR BANK, N.A.
f/k/a Star Bank
By: /s/ XXXXX X. XXXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxxx
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Title: Vice President
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
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Title: SVP
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By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: VP
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