SECOND AMENDMENT TO LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This SECOND AMENDMENT TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
("Second Amendment"), dated as of October 28, 1997, by and among FIRST UNION
NATIONAL BANK, successor to First Fidelity Bank, N.A., a national banking
association with offices at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (the
"Bank"), CENTRAL CASTINGS CORPORATION, an Alabama corporation with offices at
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000 (the "Borrower"), CENTRAL SPRINKLER
COMPANY, a Pennsylvania corporation with offices located at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 ("CSC"), and CENTRAL SPRINKLER CORPORATION, a Pennsylvania
corporation with offices located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000
("Corporation;" together with CSC, the "Guarantors"). The Borrower and the
Guarantors are collectively referred to herein as the "Obligors".
BACKGROUND
A. The Bank and the Borrower (and others) are parties to that certain
Letter of Credit and Reimbursement Agreement dated as of November 1, 1995, as
amended by that certain Amendment to Letter of Credit and Reimbursement
Agreement dated as of January 27, 1997 (the "Credit Agreement"). Capitalized
terms not otherwise defined herein shall have the meaning ascribed to such terms
in the Credit Agreement.
B. The Obligors and certain other related entities intend to enter into
a financing arrangement with CoreStates Bank, N.A. and a syndicate of banks,
pursuant to which the Obligors will obtain financing in the maximum original
principal amount of $55,000,000 (the "CoreStates Financing").
C. As a condition to the CoreStates Financing, the lenders have
required that all of the Obligors' existing lenders, including the Bank, modify
certain terms and conditions of their existing financing arrangements to conform
said terms and conditions to certain terms and conditions of the CoreStates
Financing.
D. In light of the foregoing, the Obligors have requested the Bank to
amend certain provisions of the Credit Agreement, and the Bank has agreed to do
so, subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, incorporating the Background herein, the Bank and the
Obligors, each intending to be legally bound hereby and for good and valuable
consideration, agree as follows:
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1. AMENDMENTS.
a. New Definitions. The following defined terms are hereby
added to Section 1.1 of the Credit Agreement:
"Net Income" means, for any relevant period, the net income
after taxes for such period of the Consolidated Corporations
on a consolidated basis, as determined in accordance with
GAAP.
b. Existing Definitions. Credit Documents shall also be deemed
to include all other documents executed and or delivered in connection with this
Second Amendment.
c. Covenants. The covenants set forth in Article 6 of the
Credit Agreement are hereby amended as follows:
(1) Section 6.18(K) is hereby amended and modified by
deleting "and" as it appears in the 8th line therein and adding the following
prior to the period in the 9th line therein: "; and (d) the CoreStates
Financing".
(2) Schedule A attached hereto shall amend and
supplement the Schedule A attached to the Amendment to Letter of Credit and
Reimbursement Agreement to reflect the Liens granted and the Indebtedness
incurred in connection with the CoreStates Financing.
(3) Section 6.19(a)(viii) is hereby amended and
restated in its entirety as follows: "cash borrowings in the form of unsecured
revolving lines of credit under which (1) trade letters of credit and bankers'
acceptance may be issued, and (2) the maximum credit availability thereunder
does not exceed $10,000,000 in the aggregate."
d. New Financial Covenants. The financial covenants set forth
in Article 7 of the Credit Agreement are hereby amended and restated in their
entirety as follows:
Section 7.1 Consolidated Minimum Tangible Net Worth. The
Consolidated Corporations shall maintain, on a consolidated
basis, at all times (to be measured as of the last date of
each fiscal quarter and tested in connection with the delivery
of financial statements pursuant to Sections 6.1 and 6.2
hereof) a Tangible Net Worth of no less than (i) Forty-Eight
Million Dollars ($48,000,000) plus (ii) (A) seventy-five
percent (75%) multiplied by (B) the Net Income for each fiscal
year (on a cumulative basis) commencing with the fiscal year
ending October 31, 1997; provided, however, no change shall be
made hereto by reason of clause (ii) if the Net Income is
negative for any fiscal year.
Section 7.2 Adjusted Consolidated Current Ratio. The
Consolidated Corporations shall maintain, on a consolidated
basis (as of the last date of each fiscal quarter
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and tested in connection with the delivery of financial
statements pursuant to Sections 6.1 and 6.2 hereof and the
delivery of a certification of the Chief Financial Office of
the Borrower certifying the outstanding principal balance of
the CoreStates Financing as of the last date of each fiscal
quarter) a ratio of (i) Consolidated Current Assets to (ii)
(a) Consolidated Current Liabilities plus (b) the outstanding
principal balance of the revolving credit facility under the
CoreStates Financing, of not less than 1.00:1.00.
Section 7.3 Consolidated Funded Indebtedness Limit. The
Consolidated Corporations shall maintain, on a consolidated
basis (as of the last date of each fiscal quarter and tested
in connection with the delivery of financial statements
pursuant to Sections 6.1 and 6.2 hereof) a ratio of the
Consolidated Corporations' Consolidated Funded Indebtedness to
(i) the Consolidated Corporations' Consolidated Funded
Indebtedness plus (ii) the Consolidated Corporations' Tangible
Net Worth, of not greater than 0.65:1.00.
7.4 Cash Equivalents. The cash, cash equivalents and
marketable securities of the Consolidated Corporations shall
not at any time be less than $10,000,000.
2. CONDITIONS PRECEDENT. The Bank's obligations hereunder are expressly
conditioned upon compliance with, or execution and delivery by the Obligors to
the Bank of, the following in form and substance satisfactory to the Bank and
its counsel:
a. this Second Amendment;
b. that certain Fifth Amendment To Loan Agreement by and among
the Bank and the Obligors with respect to the term loan by the Bank in favor of
CSC dated April 15, 1994;
c. an intercreditor agreement between the Bank and CoreStates
in connection with the CoreStates Financing;
d. delivery by the Obligors and review by the Bank of a true,
correct and complete copy of the closing binder prepared in connection with the
CoreStates Financing;
e. payment of all amounts due and owing by the Obligors to the
Bank pursuant to that certain LOC demand loan by the Bank to CSC and guaranteed
by the remaining Obligors dated November 23, 1993 in the original principal
amount of $10,000,000;
f. payment of the reasonable fees and costs incurred or
expended by the Bank in connection with the preparation, negotiation, drafting
and execution of this Second Amendment and the documents, agreements,
instruments and certificates, if any, executed in connection herewith;
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g. a certificate of the Secretary or an Assistant Secretary of
each Obligor dated the date hereof including (i) resolutions duly adopted by
such Obligor authorizing the transactions under the Second Amendment; (ii)
evidence of the incumbency and signature of the officers executing on its behalf
the Second Amendment and any of the documents executed in connection herewith,
together with evidence of the incumbency of such Secretary or Assistant
Secretary; and (iii) certificates of authority or good standing for such Obligor
from its jurisdiction of incorporation; and
h. all such other documents and instruments as the Bank may
reasonably require.
3. REPRESENTATIONS AND WARRANTIES. The Obligors represent and warrant
to the Bank as follows:
a. Each Obligor has the power and authority to execute and
deliver each of the Second Amendment and all other documents and instruments
executed and delivered in connection herewith, has taken all necessary action to
authorize the execution, delivery and performance hereof and thereof, and the
Second Amendment and other documents and instruments executed in connection
herewith constitute the legal, valid and binding obligations of the Obligors
enforceable in accordance with their respective terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforceability of rights of creditors generally, and subject
to the application of equitable principles;
b. The by-laws and articles of incorporation last provided by
the Obligors to the Bank have not been amended, changed or modified in any way
and are in full force and effect as of the date hereof;
c. All the representations and warranties made by the Obligors
in the Credit Documents, as the same have been modified or amended from time to
time, are true and correct as of the date of this Second Amendment as if such
representations and warranties had been made on the date hereof; and
d. No Default or Event of Default has occurred which remains
uncured.
4. ACKNOWLEDGMENTS; RATIFICATIONS AND RELEASE.
a. Acknowledgments. The Obligors acknowledge that:
(1) the Credit Documents are valid and enforceable
against the Obligors in every respect, and all of the terms and conditions
thereof are binding upon the Obligors;
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(2) to the extent that any defenses, set-offs or
counterclaims exist to the obligations set forth under the Credit Documents, the
Obligors hereby waive any and all defenses, set-offs, and counterclaims which
they, or any of them, have or may have to the enforcement by the Bank of the
Credit Documents and to the exercise by the Bank of the Bank's rights and
remedies under the Credit Documents, as amended hereby, and/or applicable law;
(3) the Obligors acknowledge that the Bank holds
perfected security interests in and liens upon all of each of the Collateral and
that the Collateral secures all of the Obligations;
b. Ratification and Confirmation. Except as amended hereby,
all of the terms and provisions of the Credit Documents and any other documents
executed in connection with the Credit Documents, shall remain in full force and
effect and are hereby ratified, reaffirmed and confirmed and shall continue to
exist, be legal, valid and binding and in full force and effect. The Credit
Documents are not intended to be re-enacted as of the above date, but rather to
be effective as of the original date of each such document. In the event and to
the extent of any conflict between the provisions of this Second Amendment and
the provisions of the Credit Documents, the provisions of this Second Amendment
with respect thereto shall govern.
5. CONFLICTS WITH CORESTATES FINANCING DOCUMENTS.
As of the date of this Second Amendment, the Bank acknowledges and
agrees that: (i) it consents to the CoreStates Financing as entered into as of
the date hereof; and (ii) that it is the intent of the Bank and the Obligors to
conform the covenants contained in the Credit Agreement (individually, a "First
Union Covenant," and collectively, the "First Union Covenants") to those
covenants contained in the credit agreement executed in connection with the
CoreStates Financing as of the date hereof (individually, a "CoreStates
Covenant," and collectively, the "CoreStates Covenants"). To the extent that
there is any conflict between any First Union Covenant and the corresponding
CoreStates Covenant, the Bank agrees that the CoreStates Covenant shall govern
and that the Loan Agreement shall be deemed amended to include such CoreStates
Covenant; provided, however, that this paragraph 5 shall apply only to the
extent any applicable CoreStates Covenant has not been amended or modified at
any time following the date hereof without the prior written consent of the
Bank.
6. MISCELLANEOUS.
a. The Obligors agree to do such further acts and to execute
and deliver such additional agreements, instruments and documents as may be
reasonably required by the Bank to carry out the purpose of this Second
Amendment.
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b. This Second Amendment may be executed in any number of
counterparts and each such counterpart shall be deemed an original, but all such
counterparts shall constitute but one and the same agreement.
c. This Second Amendment may be modified or amended by the
Obligors and the Bank only by written agreement executed by the Bank and the
party against whom a change is to be enforced.
d. This Second Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without reference
to conflict of law principles.
e. This Second Amendment constitutes the sole agreement of the
parties with respect to the subject matter hereof and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof and
thereof.
f. This Second Amendment (i) shall be binding upon the Bank
and the Obligors and upon their respective nominees, successors and assigns, and
(ii) shall inure to the benefit of the Obligors and the Bank and to their
respective nominees, successors and assigns, provided that the Obligors may not
assign their rights hereunder or any interest herein without obtaining the prior
written consent of the Bank, and any such assignment or attempted assignment
shall be void and of no effect with respect to the Bank.
g. Any provision of this Second Amendment that is held to be
inoperative, unenforceable, void or invalid in any jurisdiction shall, as to
that jurisdiction, be ineffective, unenforceable, void or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability or validity of that provision in any other jurisdiction, and to
this end the provisions of this Second Amendment are declared to be severable.
h. Each party to this Second Amendment agrees that any suit,
action or proceeding, whether claim or counterclaim, brought or instituted by
any party hereto or any successor or assign of any party, on or with respect to
this Second Amendment or any of the Credit Documents or the dealings of the
parties with respect hereto, or thereto, shall be tried only by a court and not
by a jury. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Further, each
party waives any right it may have to claim or recover, in any such suit, action
or proceeding, any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. THE OBLIGORS ACKNOWLEDGE
AND AGREE THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT
AND THAT THE BANK WOULD NOT ENTER INTO THIS SECOND AMENDMENT IF THE WAIVERS SET
FORTH IN THIS SECTION WERE NOT A PART OF THIS SECOND AMENDMENT.
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IN WITNESS WHEREOF, the undersigned have caused this Second Amendment
to be executed by their duly authorized officers on the date first above
written.
ATTEST: CENTRAL CASTINGS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- -----------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Secretary Title: Executive Vice President
ATTEST: CENTRAL SPRINKLER COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- -----------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary Title: Executive Vice President
ATTEST: CENTRAL SPRINKLER CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- -----------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Secretary Title: Executive Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
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Schedule "A" - Liens Granted and Indebtedness Incurred Relative To CoreStates
Financing
Central Sprinkler Company ("Central Sprinkler") is the Borrower and Central
Sprinkler Corporation ("CSC") and Central Castings Corporation ("Castings") are
Co-Borrowers of up to a maximum original principal amount of $55,000,000, under
a Revolving Credit Facility, pursuant to the Credit Agreement, dated October 28,
1997, among Central Sprinkler, CSC, Castings, Central CPVC Corporation, Central
Sprinkler Export Corporation ("Export") and CoreStates bank, N.A., as Agent
(the "Agent") and the Lenders identified therein (the "Credit Agreement").
Pursuant to the Credit Agreement, the Agent and the Lenders have a security
interest in certain of the assets of Central Sprinkler, CSC and Export (the
"Secured Borrowers"), pursuant to the terms of the Security Agreement between
the Agent and the Secured Borrowers, dated as of even date therewith.
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