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Exhibit 10.1 (e)
SIXTH AMENDATORY AGREEMENT
TO
CREDIT FACILITY AND SECURITY AGREEMENT
AND
AMENDMENT TO PROMISSORY NOTE
THIS SIXTH AMENDATORY AGREEMENT TO CREDIT FACILITY AND SECURITY
AGREEMENT AND AMENDMENT TO PROMISSORY NOTE (this "Sixth Amendatory Agreement"),
effective as of March 28, 2000, is entered into by and among BANK ONE, NA, a
national banking association organized and existing under the laws of the United
States of America ("Lender"), with a place of business located at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; CONTINENTAL CONVEYOR & EQUIPMENT COMPANY, a
Delaware corporation ("Continental"), with its principal place of business and
executive offices located as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Continental Principal Place of Business") and ▇▇▇▇▇▇▇
CONVEYOR COMPANY, a Delaware corporation ("▇▇▇▇▇▇▇"), with its principal place
of business and executive offices located at U.S. Route 178 South, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "▇▇▇▇▇▇▇ Principal Business Location") (each
of Continental and ▇▇▇▇▇▇▇ being sometimes referred to herein individually as a
"Borrower" and collectively as the "Borrowers").
W I T N E S S E T H:
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WHEREAS, pursuant to the terms of that certain Assumption and
Modification Agreement by and between Borrowers and Lender dated as of March 7,
1997, the Borrowers assumed all of the Obligations of CONTINENTAL CONVEYOR &
EQUIPMENT CO. L.P., formerly a limited partnership organized and existing under
the laws of the State of Delaware, and ▇▇▇▇▇▇▇ CONVEYOR CO. L.P., formerly a
limited partnership organized and existing under the laws of the State of
Delaware (collectively, the "Original Borrowers") under that certain Credit
Facility and Security Agreement by and among the Original Borrowers and Lender
dated as of September 14, 1992, as amended by a certain First Amendment to
Credit Facility and Security Agreement by and among the Original Borrowers and
Lender executed on August 27, 1993, as further amended by a certain Second
Amendatory Agreement by and among the Original Borrowers and Lender dated as of
October 5, 1994, as further amended by a certain Consolidated Amendment No. 1 to
Credit Facility and Security Agreement by and among the Original Borrowers and
Lender dated as of July 28, 1995, and as further amended by a certain
Consolidated Amendment No. 2 to Credit Facility and Security Agreement by and
among the Original Borrowers and Lender dated as of December 13, 1996,
(collectively, the "Original Loan Agreement"); and
WHEREAS, the Original Loan Agreement was further amended by a certain
Third Amendatory Agreement to Credit Facility and Security Agreement by and
among the Borrowers and Lender dated as of March 28, 1997, by a certain Fourth
Amendatory Agreement by and among the Borrowers and Lender dated as of December,
1998, and by a certain Fifth
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Amendatory Agreement by and among the Borrowers and Lender dated as of April 29,
1999 (collectively, the Original Loan Agreement, as subsequently amended, is
referred to herein as the "Loan Agreement," all terms defined in said Loan
Agreement being used herein with the same meaning), pursuant to which the Lender
has agreed to loan to the Borrowers up to a maximum aggregate sum of
$30,000,000.00 on a revolving loan basis (the "Revolving Loan"); which Revolving
Loan is evidenced by a Fourth Amended and Restated Replacement Promissory Note
dated March 28, 1997 (the "Note"), such Note being executed and delivered by the
Borrowers to the Lender; and
WHEREAS, the Borrowers and the Lender have agreed to amend the Loan
Agreement to (i) provide for the extension of the maturity of the Revolving
Loan, and (ii) amend certain terms and covenants of the Loan Agreement and
provide for payment by the Borrowers to the Lender of all legal expenses of
Lender in connection with the matters contemplated hereby; and
WHEREAS, the Borrowers and the Lender have agreed to amend the Note to
provide for the extension of the maturity of the obligations evidenced thereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the Borrowers and the Lender agree as follows:
SECTION I. Amendment of Loan Agreement
A. Subsection (A) of Section 2.3 of the Loan Agreement is, effective
the date hereof, hereby amended and restated to read in its entirety as follows:
"(A) Revolving Loan. Subject at all times to the terms hereof,
the Lender will, until June 30, 2003, make such loans to each Borrower
as from time to time such Borrower requests (the "Revolving Loan")
consisting of advances made by Lender against the value of each
Borrower's respective Eligible Inventory and Eligible Accounts. Such
advances are anticipated to be repaid by Borrowers and thereafter
readvanced by Lender without any premiums or penalty therefor. Subject
to the provisions of Subsection (B) of this Section 2.3, the aggregate
unpaid principal of the Revolving Loan outstanding at any one time
shall not exceed the lesser of (a) the line of credit approved for
Borrowers, which is currently Thirty Million and no/100 Dollars
($30,000,000) or (b) the sum of (i) Eighty-Five percent (85%) of the
unpaid face amount of each Borrower's respective Eligible Accounts (or
such other percentages of each Borrower's Eligible Accounts as may from
time to time be fixed by the Lender upon notice to the Borrowers) and
(ii) the lesser of (1) Fifty-five percent (55%) of the cost or market
value, whichever is lower, determined on a first-in, first-out basis,
of each Borrower's respective Eligible Inventory located at the
Continental Collateral Location or ▇▇▇▇▇▇▇ Collateral Location (or such
other percentages of each Borrower's respective Eligible Inventory as
may from time to time be fixed by the
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Lender upon notice to the Borrowers) or (2) Twelve Million Dollars
($12,000,000) (or such other dollar amount as may from time to time be
fixed by the Lender upon notice to the Borrowers)."
Except as otherwise modified herein, the remainder of Section 2.3 shall remain
as written originally.
B. Subsection (C) of Section 2.3 of the Loan Agreement is, effective
the date hereof, hereby amended and restated to read in its entirety as follows:
"(C) Payment. The Revolving Loan shall be payable on June 30,
2003, and bear interest as provided in Section 2.4 of this Agreement
and shall otherwise be evidenced by, and repayable in accordance with,
the Revolving Note, as amended from time to time, but in the absence of
such revolving promissory note shall be evidenced by the Lender's
record of disbursements and repayments."
Except as otherwise modified herein, the remainder of Section 2.3 shall remain
as written originally.
C. Section 2.9 of the Loan Agreement is, effective the date hereof,
hereby amended and restated to read in its entirety as follows:
"2.9 Commitment Fee. Borrowers shall, jointly and severally,
pay to Lender on March 28, 2000 and on June 30, 2001 and each
succeeding June 30 thereafter (provided no such fee shall be taken on
June 30, 2003 unless the maturity of the Revolving Loan is extended
beyond said date), a commitment fee (the "Commitment Fee") of
Twenty-five (25) basis points on the amount of the line of credit
approved for Borrowers under the Revolving Loan pursuant to Section
2.3(A) of this Agreement, whether the Borrowers shall be entitled to
request such amount pursuant to Section 2.3(A) of this Agreement or
not."
D. A new Section 2.10 entitled "Unused Line Fee," shall be added to the
Loan Agreement and shall read in its entirety as follows:
"2.10 Unused Line Fee. Borrowers shall, jointly and severally,
pay to Lender an Unused Line Fee in respect of the Revolving Loan
payable quarterly in arrears, beginning on the first day of July, 2000,
and continuing on the first day of each October, January, April and
July thereafter. "Unused Line Fee" means a fee equal to the quotient of
(Y) the product of (i) Twenty-five (25) basis points, multiplied by
(ii) the sum of (A) the amount of the line of credit approved for
Borrowers under the Revolving Loan pursuant to Section 2.3(A) of this
Agreement, whether the Borrowers shall be entitled to request such
amount pursuant to Section 2.3(A) of this Agreement or not, minus (B)
the average principal balance of the Revolving Loan for the period of
calculation, minus (C)
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the average stated amount of letters of credit issued by the Lender
hereunder and outstanding during the period of calculation, divided by
(Z) four (4).
E. Section 8.1 (T) of the Loan Agreement is, effective the date hereof,
hereby amended and restated to read in its entirety as follows:
"(T) Measured as of the end of each calendar quarter beginning
with the quarter ended March 31, 2000, the Borrowers' (as defined
below) combined operating income (which shall be before deduction for
any Management Fees) for the immediately preceding four quarters shall
be an amount equal to or greater than the sum of $11,000,000, based
upon the Borrowers' fiscal quarter-end financial statements prepared in
accordance with GAAP."
The remainder of Section 8.1 shall remain as written originally.
F. Section 8.2 of the Loan Agreement is, effective the date hereof,
hereby amended by the addition of the following Section 8.2(U):
"(U) Make any advances or loans to any foreign-based
subsidiaries of either of the Borrowers: provided, however, that the
Borrowers, or either of them, may make loans and advances up to a
maximum aggregate principal amount outstanding at any one time of
$7,000,000 to any one or more foreign-based subsidiaries of Continental
Conveyor & Equipment Company during the period beginning October 1,
1999, and ending on June 30, 2003, the maturity date of the Revolving
Loan."
The remainder of Section 8.2 shall remain as written originally.
SECTION II. Amendment of Promissory Note
A. The first two paragraphs of page 1 of the Note are, effective the
date hereof, hereby amended and restated to read in their entirety as follows:
FOR VALUE RECEIVED, CONTINENTAL CONVEYOR & EQUIPMENT COMPANY,
a Delaware corporation, and ▇▇▇▇▇▇▇ CONVEYOR COMPANY, a Delaware
corporation (hereinafter each referred to as a "Company" and
collectively as the "Companies"), jointly and severally promise to pay
to the order of BANK ONE, NA (hereinafter referred to as the "Bank"),
the principal amount of Thirty Million and No/Dollars ($30,000,000.00),
or such lesser amount as shall have from time to time been borrowed by
the Companies, on June 30, 2003, or sooner as hereinafter provided,
with interest on the unpaid balance of said principal amount from the
date hereof at the Contract Rate, as defined in the Agreement
hereinafter referred to, which definition is hereby accepted by each
Company, as the same may from time to time be
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established. If any installment of principal, interest or other amounts
due and payable hereunder are not paid when due, or within any
applicable grace periods, the Companies shall pay interest thereon at
the rate per annum of two-percent (2%) in excess of the Contract Rate,
as the same may from time to time be established.
The Companies jointly and severally agree to pay interest on
the unpaid principal amount outstanding of this Note in monthly
installments commencing on the 1st day of April, 2000, and continuing
on the 1st day of each month thereafter. The unpaid balance of the
principal amount outstanding and all accrued interest thereon shall be
due and payable on June 30, 2003.
B. The fourth paragraph of page 1 of the Note, which paragraph carries
over to page 2 of the Note, is, effective the date hereof, hereby amended and
restated to read in its entirety as follows:
This Note is issued pursuant to and is entitled to the
benefits of a Credit Facility and Security Agreement dated as of
September 14, 1992 by and between CONTINENTAL CONVEYOR & EQUIPMENT CO.
L.P., a limited partnership organized and formerly existing under the
laws of the State of Delaware, and ▇▇▇▇▇▇▇ CONVEYOR CO. L.P., a limited
partnership organized and formerly existing under the laws of the State
of Delaware (such partnerships hereinafter referred to as the "Original
Borrowers") and the Bank, as amended by that certain First Amendment to
Credit Facility and Security Agreement executed on August 27, 1993, by
that certain Second Amendatory Agreement dated as of October 5, 1994,
by that certain Consolidated Amendment No. 2 to Credit Facility and
Security Agreement dated as of December 13, 1996, all by and among the
Original Borrowers and the Bank, and as further amended by that Certain
Third Amendatory Agreement by and among the Companies and the Bank
dated March 28, 1997, by that certain Fourth Amendatory Agreement by
and among the Companies and the Bank dated as of December, 1998, by
that certain Fifth Amendatory Agreement by and among the Companies and
the Bank dated as of April 29, 1999, by that certain Sixth Amendatory
Agreement by and among the Companies and the Bank dated as of March 28,
2000, and by any further amendments modifications or restatements
entered into between the Companies and the Bank from time to time
(collectively, the "Agreement"), to which reference is hereby made for
a statement of the rights and obligations of the Bank and the duties
and obligations of each Company in relation thereto; but neither this
reference to said Agreement nor any provisions thereof shall affect or
impair the absolute and unconditional obligation of each Company to pay
the principal of or interest on this Note when due. This Note has been
issued pursuant to the Agreement in substitution for a certain existing
Amended and Restated Replacement Promissory Note (Revolving Loan) dated
July 28, 1995, which was issued in Substitution for a certain Amended
and Restated Promissory Note (Revolving Loan) dated September 14, 1992
(collectively, the "Old Notes").
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It is understood and acknowledged by each Company that this Note is not
intended as a novation of the obligations of the Original Borrowers and
two Companies under the Old Notes but is merely a restatement of the
obligations thereunder and under the Agreement, after giving effect to
the most recent amendatory agreement thereto.
SECTION III. Conditions Precedent
Each Borrower hereby understands and agrees that the effectiveness of
this Sixth Amendatory Agreement is subject to receipt by the Lender, on or prior
to the date hereof, in form and substance satisfactory to the Lender and its
counsel, of the following:
A. Certificates, dated as of the date hereof, signed by duly
elected officers of each Borrower and to the effect that:
1) As of said date, no Event of Default has occurred and
is continuing and no event has occurred and is
continuing that, with the giving of notice or passage
of time or both, would be an Event of Default;
2) The representations and warranties set forth in
Section 7 of the Loan Agreement are true and correct
as of such date; and
3) Each Borrower is in compliance with all of the terms
and provisions set forth in the Loan Agreement on and
as of said date.
B. Certificates, dated as of the date hereof, of the secretary of
each Borrower certifying (1) that such Borrower's Certificate
of Incorporation has not been amended since the date
originally adopted and such Borrower's By-Laws have not been
amended since the date originally adopted (or certifying that
true, correct and complete copies of any amendments are
attached), (2) that copies of resolutions of the Board of
Directors of such Borrower are attached with respect to the
approval of this Sixth Amendatory Agreement and of the matters
contemplated hereby and authorizing the execution, delivery
and performance by such Borrower of this Sixth Amendatory
Agreement and each other document, instrument, agreement or
note to be delivered pursuant hereto and (3) as to the
incumbency and signatures of the officers of such Borrower
signing this Sixth Amendatory Agreement and each other
document, instrument, agreement or note to be delivered
pursuant hereto.
C. An Acknowledgement, Consent and Agreement, substantially in
the form of Exhibit B attached hereto, with all blanks
completed, duly executed by Continental Global Group, Inc.
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F. Such other documents as the Lender may reasonably request to
implement this Sixth Amendatory Agreement and the transactions
contemplated hereby.
If Lender shall consummate the transactions contemplated hereby prior
to the fulfillment of any of the conditions precedent set forth above, the
consummation of such transaction shall constitute only an extension of time for
the fulfillment of such conditions, and not a waiver thereof.
SECTION IV. Fees and Expenses
Borrowers shall jointly and severally pay all out-of-pocket fees and
expenses incurred by the Lender in connection with the preparation, negotiation,
execution and delivery of this Sixth Amendatory Agreement, and all other
agreements, documents or certificates required or contemplated hereby,
including, without limitation, all legal fees and expenses of the Lender's legal
counsel in connection therewith.
SECTION V. Acknowledgments Concerning Outstanding Loans
Borrowers hereby acknowledge and agree that as of March 27, 2000, the
current outstanding balance of the Revolving Loan ($3,951,220) and amounts owed
pursuant to letters of credit and/or existing equipment leases, are owed to
Lender without any offset, deduction, defense or counterclaim of any nature
whatsoever.
SECTION VI. References; Credit Documents to Remain in Full Force and Effect
Except as otherwise defined herein, all capitalized terms used herein
shall have the meanings given such terms in the Loan Agreement, as amended
hereby. On and after the effective date of this Sixth Amendatory Agreement, (i)
each reference in the Loan Agreement to "this Agreement", "hereunder", "hereof",
or words of like import referring to the Loan Agreement, and in the Note and
other Credit Documents to the "Loan Agreement", "thereof", or words of like
import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended hereby, and (ii) each reference in the Loan Agreement and
in the Note and other Credit Documents to the "Revolving Note", "thereof", or
words of like import referring to the Revolving Note shall mean and refer to the
Note, as amended hereby. Except as modified herein, the Note, the Loan
Agreement, the Credit Documents and all other agreements as to payment,
guarantee of payment or security executed in connection therewith, including
without limitation all mortgages and deeds of trust, shall remain as written
originally and in full force and effect in all respects, and nothing herein
shall affect, modify, limit or impair any of the rights and powers which the
Lender may have thereunder, and are hereby and in all respects ratified and
confirmed.
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SECTION VII. Applicable Law
This Sixth Amendatory Agreement shall be deemed to be a contract under
the laws of the State of Ohio, and for all purposes shall be construed in
accordance with the laws of the State of Ohio.
SECTION VIII. Counterparts
This Sixth Amendatory Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any one of the parties hereto may execute this Sixth Amendatory
Agreement by signing any such counterpart.
SECTION IX. Conflicts
If and to the extent the terms of this Sixth Amendatory Agreement
conflict with any term of any prior amendment to the Loan Agreement, then the
terms of this Sixth Amendatory Agreement shall control.
IN WITNESS WHEREOF, the Borrowers and the Lender have caused this Sixth
Amendatory Agreement to be executed by their duly authorized officers as of the
date and year first above written.
BANK ONE, NA CONTINENTAL CONVEYOR &
EQUIPMENT COMPANY
By: By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President Title: President
▇▇▇▇▇▇▇ CONVEYOR COMPANY
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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