EXHIBIT 4.2
AMENDMENT NO. 5 TO CREDIT AND SECURITY AGREEMENT
This Amendment No. 5 to Credit and Security Agreement ("Amendment No.
5") dated effective as of the 25 day of March, 2003, by and between COHESANT
TECHNOLOGIES INC., a Delaware corporation (hereinafter referred to as
"Borrower"), and UNION PLANTERS BANK, N.A., a national banking association
(hereinafter referred to as "Bank").
W I T N E S S E T H :
WHEREAS, the Borrower and the Bank are parties to that certain Credit
and Security Agreement dated as of the 15th day of May, 1998, as amended by that
certain Amendment No. 1 to Credit and Security Agreement dated April 13, 1999,
as further amended by that certain Amendment No. 2 to Credit and Security
Agreement dated April 17, 2000, as further amended by that certain Amendment No.
3 to Credit and Security Agreement dated April 1, 2001, and as further amended
by that certain Amendment No. 4 to Credit and Security Agreement dated April 29,
2002 (hereinafter referred to as "Agreement"); and
WHEREAS, the Borrower desires to renew the financial accommodations
previously extended by the Bank; and
WHEREAS, the Bank is willing to provide such financial accommodations
to the Borrower on the terms and subject to the conditions in the Agreement as
amended by the terms and conditions of this Amendment No. 5.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1. Effect of this Amendment No. 5. This Amendment No. 5 shall
not change, modify, amend or revise the terms, conditions and
provisions of the Agreement, the terms and provisions of which are
incorporated herein by reference, except as expressly provided herein
and agreed upon by the parties hereto. This Amendment No. 5 is not
intended to be nor shall it constitute a novation or accord and
satisfaction of the outstanding instruments by and between the parties
hereto. Borrower and Bank agree that, except as expressly provided
herein, all terms and conditions of the Agreement shall remain and
continue in full force and effect. The Borrower acknowledges and agrees
that the indebtedness under the Agreement remains outstanding and is
not extinguished, paid, or retired by this Amendment No. 5, or any
other agreements between the parties hereto prior to the date hereof,
and that Borrower is and continues to be fully liable for all
obligations to the Bank contemplated by or arising out of the
Agreement. Except as expressly provided otherwise by this Amendment No.
5, the credit facilities contemplated by this Amendment No. 5 shall be
made according to and pursuant to all conditions, covenants,
representations and warranties contained in the Agreement.
Section 2. Definitions. Terms defined in the Agreement which are used
herein shall have the same meaning as set forth in the Agreement unless
otherwise specified herein.
Section 3. Amendment of Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 5 herein, the Agreement is
amended as follows:
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(a) The first sentence of Subsection 2.1.1 of the
Agreement is hereby amended and replaced with the
following:
2.1.1 The obligation of the Borrower to repay the Line of Credit
Loans shall be evidenced by the Line of Credit Note which
shall be repayable on or before May 1, 2004 ("Maturity").
(b) Subsection 8.2.2 of the Agreement is hereby amended
and replaced with the following:
8.2.2 Except for mergers, acquisitions or other business
combinations involving aggregate consideration of less that
One Million Five Hundred Thousand Dollars ($1,500,000.00)(with
not more than One Million Dollars ($1,000,000.00) in cash or
cash equivalents) and provided that Borrower is the surviving
entity to such merger, acquisition or other business
combination, consolidate with, merge into, acquire or
otherwise combine with any other corporation or other business
entity or division.
Section 4. Conditions Precedent. This Amendment No. 5 shall become and
be deemed effective in accordance with its terms immediately upon the
Bank receiving:
(a) Two (2) copies of this Amendment No. 5 duly executed
by the authorized officers of the Borrower and the
Bank.
(b) One (1) copy of the Line of Credit Note reflecting
the revised Maturity duly executed by an authorized
officer of the Borrower.
(c) Two (2) copies of a Consent and Confirmation of
Guaranty executed by each of the Guarantors.
(d) Certificates of Existence regarding Borrower and
Guarantors issued by the appropriate Secretary of
State's Office.
(e) Two (2) copies of an Officer's Certificate regarding
Resolutions and Incumbency of Borrower.
(f) Such other documents and items as the Bank may
reasonably request.
Section 5. Representations and Warranties of the Borrower. The Borrower
hereby represents and warrants, in addition to any other
representations and warranties contained herein, in the Agreement, the
Loan Documents (as defined in the Agreement) or any other document,
writing or statement delivered or mailed to the Bank or its agent by
the Borrower, as follows:
(a) This Amendment No. 5 constitutes a legal, valid and
binding obligation of the Borrower enforceable in
accordance with its terms. The Borrower has taken all
necessary and appropriate corporate action for the
approval of this Amendment No. 5 and the
authorization of the execution, delivery and
performance thereof.
(b) As of the date hereof, there is no Event of Default
or Default under the Agreement, the Amendment No. 5
or the Loan Documents.
(c) The Borrower hereby specifically confirms and
ratifies its obligations, waivers and consents under
each of the Loan Documents.
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(d) Except as specifically amended herein, all
representations, warranties and other assertions of
fact contained in the Agreement and the Loan
Documents continue to be true, accurate and complete.
(e) There have been no changes to the Articles of
Incorporation, By-Laws, or the composition of the
Board of Directors of the Borrower since execution of
the Agreement.
(f) Borrower acknowledges that the definition "Loan
Documents" shall include this Amendment No. 5 and all
the documents executed contemporaneously herewith.
Section 6. Affirmative Covenants. By entering into this Amendment No.
5, Borrower further specifically undertakes to comply with the
obligations, terms and covenants as contained in the Agreement and
agrees to comply therewith as such relate to the credit facilities and
accommodations as provided to the Borrower pursuant to the terms of
this Amendment No. 5.
Section 7. Governing Law. This Amendment No. 5 has been executed and
delivered and is intended to be performed in the State of Indiana and
shall be governed, construed and enforced in all respects in accordance
with the substantive laws of the State of Indiana.
Section 8. Headings. The section headings used in this Amendment No. 5
are for convenience only and shall not be read or construed as limiting
the substance or generality of this Amendment No. 5.
Section 9. Survival. All representations, warranties, and covenants of
the Borrower herein or any certificate, agreement or other instrument
delivered by or on its behalf under this Amendment No. 5 shall be
considered to have been relied upon by the Bank and shall survive the
making of the Loans and delivery to the Bank of the Line of Credit
Note. All statements and any such certificate or other instrument shall
constitute warranties and representations hereunder by the Borrower, as
the case may be.
Section 10. Counterparts. This Amendment No. 5 may be signed in one or
more counterparts, each of which shall be considered an original, with
the same effect as if the signatures were upon the same instrument.
Section 11. Modification. This Amendment No. 5 may be amended,
modified, renewed or extended only by written instrument executed in
the manner of its original execution.
Section 12. Waiver of Certain Rights. The Borrower waives acceptance or
notice of acceptance hereof and agrees that the Agreement, this
Amendment No. 5, the Line of Credit Note, and all of the other Loan
Documents shall be fully valid, binding, effective and enforceable as
of the date hereof, even though this Amendment No. 5 and any one or
more of the other Loan Documents which require the signature of the
Bank, may be executed by and on behalf of the Bank on other than the
date hereof.
Section 13. Waiver of Defenses and Claims. In consideration of the
financial accommodations provided to the Borrower by the Bank as
contemplated by this Amendment No. 5, Borrower hereby waives, releases
and forever discharges the Bank from and against any and all rights,
claims or causes of action against the Bank arising under the Bank's
actions or inactions with respect to the Loan Documents or any security
interest, lien or collateral in connection therewith as well as any and
all rights of set off, defenses, claims, causes of action and any other
bar to the enforcement of the Loan Documents which exist as of the date
hereof.
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IN WITNESS WHEREOF, COHESANT TECHNOLOGIES INC. and UNION PLANTERS BANK,
N.A. have caused this Amendment No. 5 to Credit and Security Agreement
to be executed by their respective duly authorized officers effective
as of the 25 day of March, 2003.
COHESANT TECHNOLOGIES INC.
("Borrower")
By:
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Printed:
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Title:
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UNION PLANTERS BANK, N.A.
("Bank")
By:
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Xxxxx X. Xxxxxx, Vice President
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