Exhibit 10.2
FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT ("Fourth
Amendment") is made as of this 8th day of June, 2005, by and among FLEET CAPITAL
CORPORATION ("Fleet"), a Rhode Island corporation with an office at Xxx Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, individually as a Lender and
as Agent ("Agent") for itself and any other financial institution which is or
becomes a party hereto (each such financial institution, including Fleet, is
referred to hereinafter individually as a "Lender" and collectively as the
"Lenders"), the CANADIAN PARTICIPANTS party hereto, the U.K. PARTICIPANTS party
hereto, FLEET CAPITAL GLOBAL FINANCE, INC., individually as a Lender and as
Canadian Agent ("Canadian Agent"), BANK OF AMERICA, N.A., London branch (as
successor-in-interest to Fleet National Bank, London branch, trading as
FleetBoston Financial), individually as a Lender and as U.K. Agent ("U.K.
Agent"), XXXXX FARGO FOOTHILL, LLC, as Syndication Agent, LASALLE BANK NATIONAL
ASSOCIATION, as Documentation Agent, the LENDERS, KATY INDUSTRIES, INC., a
Delaware corporation, with its chief executive office and principal place of
business at 000 Xxxxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxxx 00000
("Katy" or "U.S. Borrower"), XXXXX INDUSTRIES (CANADA) INC., a Canadian
corporation with its chief executive office and principal place of business at
000 Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx X0X 0X0 ("Xxxxx Canada" or "Canadian
Borrower") and CEH LIMITED ("CEH" or "U.K. Borrower"), a private limited company
incorporated under the laws of England and Wales and registered with Company No.
4992300 whose registered office is Xxxxxxx Xxx, Xxxxxxx Xxxxxxxx, XX00 0XX,
Xxxxxxx. Katy, Xxxxx Canada and CEH are sometimes hereinafter referred to
individually as a "Borrower" and collectively as "Borrowers."
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Canadian Participants, U.K. Participants,
Canadian Agent, U.K. Agent and Borrowers entered into a certain Amended and
Restated Loan Agreement dated as of April 20, 2004 as amended by a certain First
Amendment to Amended and Restated Loan Agreement dated June 29, 2004 by and
among Agents, Lenders and Borrowers, by a certain Second Amendment to Amended
and Restated Loan and Security Agreement dated March 29, 2005 by and among
Agent, Lenders and Borrowers and by a certain Third Amendment to Amended and
Restated Loan and Security Agreement dated April 13, 2005 by and among Agent,
Lenders and Borrowers (said Loan Agreement, as so amended, is hereinafter
referred to as the "Loan Agreement"); and
WHEREAS, Borrowers desire to amend and modify certain provisions of the
Loan Agreement pursuant to the terms and conditions hereof;
WHEREAS, subject to the terms and conditions hereof, Agent, Lenders,
Canadian Participants, U.K. Participants, U.K. Agent and Canadian Agent are
willing to so amend and modify the Loan Agreement; and
NOW THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and any extension of credit heretofore, now or
hereafter made by Agent and Lenders to Borrowers, the parties hereto hereby
agree as follows:
1. Definitions. All capitalized terms used herein without definition shall
have the meanings given to them in the Loan Agreement.
2. Total Money Borrowed. Subsection 7.2.3 of the Loan Agreement is hereby
deleted and the following is inserted in its stead:
"7.2.3 Total Money Borrowed. Create, incur, assume, or suffer to
exist, or permit any Subsidiary of Borrower to create, incur or suffer to
exist, any Money Borrowed, except:
(i) Obligations owing to Agent or any Lender under this
Agreement or any of the other Loan Documents;
(ii) Money Borrowed, including without limitation Subordinated
Debt, existing on the date of this Agreement and listed on Exhibit
7.2.3;
(iii) Permitted Purchase Money Borrowed;
(iv) Guaranties of any Money Borrowed permitted hereunder;
(v) Money Borrowed in respect of intercompany loans permitted
under subsection 7.2.2(v), (vi) and (vii);
(vi) Obligations to pay Rentals permitted by subsection
7.2.18;
(vii) Second Lien Debt;
(viii) unsecured Money Borrowed in connection with the
financing of insurance premiums; provided that the aggregate amount
of any such Money Borrowed does not exceed, at any point in time,
$2,000,000; and
(ix) Money Borrowed not included in paragraphs (1) through
(viii) above which does not exceed at any time, in the aggregate,
the sum of $500,000."
3. Condition Precedent. This Fourth Amendment shall become effective upon the
execution and delivery of this Fourth Amendment by each of Borrowers,
Agent and Majority Lenders. The date on which such condition precedent is
satisfied shall be referred to as the "Fourth Amendment Effective Date."
4. Continuing Effect. Except as otherwise specifically set out herein, the
provisions of the Loan Agreement shall remain in full force and effect.
5. Governing Law. This Fourth Amendment and the obligations arising hereunder
shall be governed by, and construed and enforced in accordance with, the
laws of the State of
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Illinois applicable to contracts made and performed in such state, without
regard to the principles thereof regarding conflicts of laws.
6. Counterparts. This Fourth Amendment may be executed in any number of
separate counterparts, each of which shall, collectively and separately,
constitute one agreement.
(Signature Page Follows)
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(Signature Page to Fourth Amendment to Loan Agreement)
IN WITNESS WHEREOF, this Fourth Amendment has been duly executed on the
day and year specified at the beginning of this Fourth Amendment.
KATY INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President and CFO
CEH LIMITED
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Director
and
By: /s/ Xxxxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
XXXXX INDUSTRIES (CANADA) INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Secretary
FLEET CAPITAL CORPORATION,
as Agent and as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice-President
XXXXX FARGO FOOTHILL LLC,
as Syndication Agent and Lender
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
Title: Vice-President
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By:
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Name:
Title:
UPS CAPITAL CORPORATION, as a Lender
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Director of Portfolio Management
BANK OF AMERICA, N.A., London branch,
as U.K. Agent and U.K. Lender
By:
---------------------------------------
Name:
----------------------------------
Title:
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FLEET CAPITAL GLOBAL FINANCE, INC.,
as Canadian Agent and Canadian Lender
By:
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Name:
----------------------------------
Title:
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Accepted and Agreed to this 8th day of June, 2005.
GUARANTORS:
KKTY HOLDING COMPANY, L.L.C.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Authorized Manager
AMERICAN GAGE & MACHINE CO.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Secretary
CONTINENTAL COMMERCIAL PRODUCTS, LLC
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Secretary
PTR MACHINE CORP.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Secretary
SAVANNAH ENERGY SYSTEMS COMPANY
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Secretary
XXXXX INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Secretary
