FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this "Amendment") is entered into as of April
30, 1996, among the undersigned. Terms not defined in this Amendment have the
respective meanings given such terms in the Credit Agreement defined below.
RECITALS
A. Reference is made to that certain AMENDED AND RESTATED CREDIT
AGREEMENT (as amended, supplemented, or replaced, the "Credit Agreement") dated
as of December 11, 1992, executed by ELJER MANUFACTURING, INC., a Delaware
corporation (the "Borrower"); ELJER INDUSTRIES, INC., a Delaware corporation
(the "Parent Guarantor"); the financial institutions from time to time parties
thereto; NATIONSBANK OF TEXAS, N.A., ("NationsBank"), as a Bank and a co-agent
and the administrative agent for itself and the other Banks; and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK ("Xxxxxx Guaranty"), as a Bank and a co-agent for
itself and the other Banks.
B. The undersigned desire to amend the Credit Agreement.
NOW THEREFORE, the undersigned agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms
shall have the same meanings as in the Credit Agreement.
2. Permitted Debt. Paragraph 6 on Schedule 5.15 (Permitted Debt) is
hereby amended in its entirety to read as follows:
6. (a) One or more credit facilities of Selkirk Manufacturing
Limited, the aggregate principal amount of which cannot exceed
$25,000,000, (b) one or more credit facilities of Selkirk
Schornsteintechnik GmbH, the aggregate principal amount of which cannot
exceed $7,500,000; and (c) one or more credit facilities of Selkirk
S.R.L., the aggregate principal amount of which can not exceed
$1,000,000; provided that (i) the principal debt outstanding under all
of the foregoing credit facilities may not exceed $25,000,000 in the
aggregate at any time, (ii) no Related Company may be an obligor on the
indebtedness described in clause (a) other than Selkirk Manufacturing
Limited and Eljer Industries Limited, (iii) no Related Company may be
an obligor on the indebtedness described in clause (b) other than
Selkirk Schornsteintechnik GmbH, and (iv) no Related Company may be an
obligor on the indebtedness described in clause (b) other than Selkirk
S.R.L.
3. Use of Funds in Restricted Account. Notwithstanding anything in the
Restricted Account Agreement to the contrary, Borrower may use funds in the
Restricted Account for the purpose of paying to the Banks the mandatory
prepayment of the Obligation in an amount sufficient to reduce the Principal
Debt outstanding on May 1, 1996, by $3,000,000.
4. Representations and Warranties. The Borrower and the Parent
Guarantor jointly and severally represent and warrant to each Agent and to each
Bank that as of this date:
(a) the execution and delivery of this Amendment have been
authorized by all requisite corporate action and will not violate its
organizational documents;
(b) except for matters heretofore disclosed in writing by any
Related Company, the representations and warranties in each Loan Paper
(as affected by this Amendment) to which it is a party are true and
correct in all material respects on and as of the date hereof as though
made on and as of the date hereof (except to the extent that (i) such
representations and warranties speak to a specific date or (ii) the
facts on which such representations and warranties are based have been
changed by transactions contemplated by the Credit Agreement); and
(c) no Default or Event of Default exists.
5. Conditions. This Fourth Amendment shall not become effective
unless:
(a) The Administrative Agent shall have received a certificate
from a Responsible Officer certifying, based on due inquiry, that all
of the representations and warranties in paragraph 4, above, are true
and correct;
(b) Administrative Agent shall have received executed
counterparts of this Fourth Amendment from the Borrower, the Parent
Guarantor, and all Banks, and a certificate from a Responsible Officer
of each of the Borrower and Parent Guarantor certifying as to (i) the
due incumbency of its officers authorized to execute this Fourth
Amendment, (ii) resolutions duly adopted by its directors approving and
authorizing execution of this Fourth Amendment, and (iii) any changes
to its corporate charter or bylaws since August 15, 1995;
6. Release. In consideration of the agreement of the parties hereto to
enter into this Amendment, (a) the Parent Guarantor and the Borrower each
release the Administrative Agent, each Agent, each Bank, and their respective
parents, subsidiaries, directors, officers, employees, representatives, agents,
successors, assigns, and attorneys from all claims and causes of action existing
on or before the date hereof under or in connection with the Existing Credit
Facilities, the Xxxxxx Guaranty Swap Agreement, or the Existing Letters of
Credit, or arising in connection with the execution, negotiation, and
preparation of this Amendment, the Credit Agreement and the other Loan Papers,
and (b) the Administrative Agent, each Agent, and each Bank each release the
Borrower, the Parent Guarantor, and their respective parents, subsidiaries,
directors, officers, employees, representatives, agents, successors, assigns,
and attorneys from all claims and causes of action existing on or before the
date hereof under or in connection with the Existing Credit Facilities, the
Xxxxxx Guaranty Swap Agreement, the Existing Letters of Credit or the Loan
Papers, or arising in connection with the execution, negotiation, and
preparation of this
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Amendment, the Credit Agreement and the other Loan Papers; provided that,
nothing herein shall be deemed to be a waiver of any Default or Event of Default
under the Loan Papers.
7. Miscellaneous. This Amendment is a Loan Paper, and, therefore, this
Amendment is subject to the applicable provisions of Section 11 of the Credit
Agreement, all of which applicable provisions are incorporated herein by
reference the same as if set forth herein verbatim. Except as affected by this
Amendment, the Loan Papers are unchanged and continue in full force and effect.
Borrower and Parent Guarantor each agree that all Loan Papers to which it is a
party remain in full force and effect and continue to evidence its legal, valid,
and binding obligations enforceable in accordance with their terms (as affected
by this Amendment), except as enforceability may be limited by applicable Debtor
Relief Laws and general principles of equity. This Amendment shall be binding
upon and inure to the benefit of each of the undersigned and their respective
successors and permitted assigns.
THE LOAN PAPERS, INCLUDING THIS AMENDMENT, REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
8. Counterparts. This Amendment may be executed in more than one
counterpart, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
[Remainder of page left intentionally blank. Signature pages follow.]
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EXECUTED as of the date first written above.
ELJER MANUFACTURING, INC.,
as Borrower
By:/s/Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President-Finance
ELJER INDUSTRIES, INC.,
as Parent Guarantor
By:/s/Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President-Finance
NATIONSBANK OF TEXAS, N. A.,
as Administrative Agent, an Agent,
and a Bank
By:/s/Xxxxxxx X. Xxxxxxxxxxx, XX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx,XX
Title:Senior Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
as an Agent and a Bank
By:/s/Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By:/s/Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
DK ACQUISITION PARTNERS,
as a Bank
By: X.X. Xxxxxxxx & Co.,
a general partner
By:/s/Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
FOOTHILL CAPITAL CORPORATION,
as a Bank
By:/s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
THIRD AVENUE VALUE FUND, INC.,
as a Bank
By:/s/Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer, CFO
COMAC PARTNERS
as a Bank
By:/s/Xxxxxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: General Partner
