FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT (this "AMENDMENT") to CREDIT AGREEMENT among
SPINNAKER COATING, INC., a Delaware corporation, formerly known as Xxxxx-Bridge
Industries, Inc. ("COATING"), ENTOLETER, INC., a Delaware corporation
("Entoleter"), SPINNAKER COATING-MAINE, INC., a Delaware corporation ("SCM" and,
together with Coating and Entoleter, the "BORROWERS"), SPINNAKER INDUSTRIES,
INC., a Delaware corporation (the "GUARANTOR" and, together with the Borrowers,
the "CREDIT PARTIES"), the financial institutions from time to time party
thereto as lenders (the "LENDERS"), and TRANSAMERICA BUSINESS CREDIT
CORPORATION, as agent (in such capacity the "AGENT") for the Lenders, is made as
of April 17, 2000 among the Credit Parties and the undersigned Lenders.
W I T N E S S E T H :
WHEREAS, the Credit Parties, the Lenders and the Agent are parties to the
Credit Agreement, dated as of August 9, 1999 (as amended, restated or otherwise
modified from time to time prior to the date of effectiveness of this Amendment,
the "CREDIT AGREEMENT"; capitalized terms used herein shall have the meanings
assigned to such terms in the Credit Agreement unless otherwise defined herein);
WHEREAS, the Credit Parties have requested that the Lenders amend the
Credit Agreement as described herein; and
WHEREAS, the Lenders are agreeable to such request, but only on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereto hereby agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Upon satisfaction of the conditions to
effectiveness set forth in Section 2 hereof, the Credit Parties and the Lenders
agree that the Credit Agreement shall be deemed amended by amending and
restating Section 2.1(a)(i) in its entirety as follows:
"(i) TO COATING: an aggregate amount equal to the lesser of (x) the Coating
Line of Credit and (y) the Coating Borrowing Base, minus in each case, the
then outstanding Coating Letter of Credit Obligations and the pending
Borrowings of Coating; provided that if the sum of the outstanding
Revolving Loans extended by the Lenders to Coating and Coating Letter of
Credit Obligations exceed $3,000,000, then no additional Revolving Loan or
Letter of Credit may be incurred by Coating if after giving effect thereto
an amount equal to fifty percent (50%) of the sum of such Revolving Loans
and Coating Letter of Credit Obligations in excess of $3,000,000 exceeds
the Coating Accounts Borrowing Base;"
2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective as of
December 31, upon satisfaction of the following conditions:
(a) the Agent shall have received this Amendment, duly executed by the
Credit Parties and the Required Lenders;
(b) each of the representations and warranties set forth in Section 3
hereof shall be true and correct in all respects; and
3. REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES. Each Credit Party
represents and warrants that:
(a) the execution, delivery and performance by such Credit Party of
this Amendment have been duly authorized by all necessary corporate action and
this Amendment is a legal, valid and binding obligation of such Credit Party
enforceable against such Credit Party in accordance with its terms, except as
the enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) each of the representations and warranties contained in the Credit
Agreement is true and correct in all material respects on and as of the date
hereof as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date; and
(c) no Event of Default has occurred or remains outstanding as of the
date hereof.
4. EXPENSES. The Credit Parties shall pay for all of the reasonable costs
and expenses incurred by the Agent in connection with the transactions
contemplated by this Amendment, including, without limitation, the reasonable
fees and expenses of counsel to the Agent.
5. MISCELLANEOUS.
(a) Except as expressly amended herein, all of the terms and
provisions of the Credit Agreement and the other Credit Documents are ratified
and confirmed in all respects and shall remain in full force and effect. Each
Credit Party hereby acknowledges and agrees that there is no defense, setoff or
counterclaim of any kind, nature or description to the Obligations or the
payment thereof when due.
(b) Upon the effectiveness of this Amendment, all references in the
Credit Documents to the Credit Agreement shall mean the Credit Agreement as
amended by this Amendment and all references in the Credit Agreement to "this
Agreement," "hereof," "herein," or similar terms, shall mean and refer to the
Credit Agreement as amended by this Amendment.
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(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as an amendment to or waiver
of any right, power or remedy of the Agent or any Lender under any of the Credit
Documents, or constitute an amendment or waiver of any provision of any of the
Credit Documents.
(d) This Amendment may be executed by the parties hereto individually
or in combination, in one or more counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement. This
Amendment may be executed and delivered by telecopier with the same force and
effect as if the same were a fully executed and delivered original manual
counterpart.
(e) This Amendment shall constitute a Credit Document.
6. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers.
BORROWERS:
SPINNAKER COATING, INC.,
formerly known as Xxxxx-Bridge Industries, Inc.
By: /S/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
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Title: Executive Vice President, Chief
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Financial Officer and Coo
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SPINNAKER COATING-MAINE, INC.
By: /S/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
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Title: Vice President, Assistant Secretary
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and Treasurer
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ENTOLETER, INC.
By: /S/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: President
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GUARANTOR:
SPINNAKER INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President Finance & Treasurer
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LENDERS:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Assistant Vice President
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