Exhibit 10 (i)
AMENDMENT AND WAIVER NO. 4
AMENDMENT AND WAIVER NO. 4 (this "Amendment"), dated as of July 22,
1999, among Xxxxx Technologies, Inc., a Delaware corporation ("Borrower"),
the Lenders party to the Credit Agreement referred to below ("Lenders") and
General Electric Capital Corporation, a New York corporation, as agent for
said Lenders ("Agent"), to the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Borrower, Agent and Lenders have entered into an Amended
and Restated Credit Agreement, dated as of December 31, 1998 (as heretofore
amended, the "Credit Agreement"; the terms defined in Credit Agreement being
used herein as therein defined, unless otherwise defined herein);
WHEREAS, Borrower proposes entering into that certain Contribution
Agreement, dated as of July 22, 1999, with Bacharach Holdings, Inc.,
Bacharach, Inc., Exidyne Instrumentation Technologies LLC, Xxxx X. Xxxx, Xxxx
X. Xxxx, Xx. and Xxxxxxxxx X. Xxxx-Cuda (together with all schedules, annexes
and exhibits thereto and related documents referenced therein, the
"Contribution Agreement");
WHEREAS, Borrower has requested that: (a) Agent and Lenders consent
to Borrower entering into the Contribution Agreement and the joint venture
and other transactions contemplated under the Contribution Agreement (the
"Bacharach Joint Venture"); (b) Agent and Lenders waive the provisions of
Sections 1.3, 5.11, 5.12, 6.1, 6.2, 6.5, 6.6, 6.7, 6.8 and 6.14 of the Credit
Agreement that would otherwise prohibit the Bacharach Joint Venture; and (c)
amend certain provisions of the Credit Agreement to facilitate the Bacharach
Joint Venture; and
WHEREAS, Agent and Lenders party hereto are willing to grant such
consent and waivers and amend certain provisions of the Credit Agreement,
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereby agree as follows:
SECTION 1. CONSENT AND WAIVER. Subject to the satisfaction of
each of the conditions set forth in Section 7 hereof, Agent and each Lender
party hereto hereby (a) consents, pursuant to Section 11.1 of the Credit
Agreement, to the Bacharach Joint Venture; and (b) waives the provisions of
Sections 1.3, 5.11, 5.12, 6.1, 6.2, 6.5, 6.6, 6.7, 6.8 and 6.14 of the Credit
Agreement to the extent, but only to the extent, such provisions would
prohibit the
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Bacharach Joint Venture.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement
is hereby amended as follows:
(a) AMENDMENT TO SECTION 6.3 OF CREDIT AGREEMENT. Section 6.3 of
the Credit Agreement is amended by inserting the following sentence at the
end thereof:
"Borrower shall not permit Xxxxx Xxxxxxxxx, LLC to create, incur, assume
or permit any Indebtedness in excess of $5,000,000 during the term of
this Agreement."
(b) AMENDMENTS TO SECTION 6.4 OF CREDIT AGREEMENT. (i) Section
6.4 of the Credit Agreement is amended by deleting clause (v) of subsection
(a) thereof in its entirety and substituting in lieu thereof the following:
"(v) extend loans to Xxxxx Xxxxxxxxx, LLC in an aggregate principal
amount not to exceed $5,000,000 during the term of this Agreement and to
other Joint Venture Subsidiaries to the extent permitted by SECTION
6.2(vii);"
(ii) Section 6.4 of the Credit Agreement is further amended by
inserting immediately preceding the phrase "Subsidiaries of Borrower" in
clause (vi) of subsection (a) thereof the phrase "Xxxxx Xxxxxxxxx, LLC or".
SECTION 3. AMENDMENTS TO ANNEX A TO CREDIT AGREEMENT. Annex A to
the Credit Agreement is hereby amended as follows:
(a) AMENDMENT TO DEFINITION OF "EBITDA". The definition of the
term "EBITDA" is amended by inserting immediately before the period at the
end thereof the following:
"; and PROVIDED, FURTHER, that the calculation of EBITDA shall not in
any event include any Net Income, Interest Expense, tax expense,
amortization expense, depreciation expense, extraordinary gains and
losses and other non-cash expenses in respect of the foregoing to the
extent included in the determination of Net Income of any minority
interest in any Joint Venture Subsidiary"
(b) AMENDMENT TO DEFINITION OF "INTEREST EXPENSE". The definition
of the term "Interest Expense" is amended by deleting the phrase "and its
Subsidiaries" therein and substituting in lieu thereof the phrase ", its
Subsidiaries and its Joint Venture Subsidiaries (if required to be
consolidated with Borrower in accordance with GAAP)".
(c) AMENDMENT TO DEFINITION OF "NET INCOME". The definition of
the term "Net Income" is amended by deleting the phrase "and its
Subsidiaries" therein and substituting in lieu thereof the phrase ", its
Subsidiaries and its Joint Venture Subsidiaries (if required to be
consolidated with Borrower in accordance with GAAP)".
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SECTION 4. AMENDMENT TO SCHEDULE 3.9 TO CREDIT AGREEMENT.
Schedule 3.9 to the Credit Agreement is hereby amended by inserting "Xxxxx
Xxxxxxxxx, LLC" therein as an Unrestricted Subsidiary and a Joint Venture
Subsidiary.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Borrower represents
and warrants to Agent and Lenders as follows:
(a) All of the representations and warranties of Borrower
contained in the Credit Agreement and in the other Loan Documents are true
and correct on the date hereof as though made on such date, except to the
extent that any such representation or warranty expressly relates to an
earlier date, for changes permitted or contemplated by the Credit Agreement
or as otherwise disclosed in writing to Agent and Lenders. No Default or
Event of Default has occurred and is continuing or would result from the
transactions contemplated hereby.
(b) The execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary or proper corporate
action and do not require the consent or approval of any Person which has not
been obtained.
(c) This Amendment has been duly executed and delivered by
Borrower and each of this Amendment and the Credit Agreement as amended
hereby constitutes a legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
SECTION 6. EFFECT ON THE LOAN DOCUMENTS. (a) Upon the
effectiveness of this Amendment, each reference in any Loan Document to "this
Agreement", "hereunder", "herein", or words of like import, and each
reference in any other Loan Document to such Loan Document, shall mean and be
a reference to such Loan Document as amended hereby.
(b) Except as certain provisions are specifically amended or
waived herein, the Credit Agreement shall remain in full force and effect and
is hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a modification of
any right, power, or remedy of the Agent or the Lenders under any of the Loan
Documents, nor constitute a modification of any provision of any of the Loan
Documents.
SECTION 7. EFFECTIVENESS. This Amendment shall become effective
as of the date first set forth above, provided that each of the following
conditions has been satisfied on the date hereof, including the delivery to
Agent of each of the documents set forth below in form and substance
satisfactory to Agent:
(a) Counterparts of this Amendment duly executed by Borrower, the
Required Lenders and Agent;
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(b) A copy of the fully and duly executed Contribution Agreement;
(c) Pursuant to the definition of "Joint Venture Subsidiary" in
the Credit Agreement, a certificate of a Responsible Officer of Borrower
certifying the designation of the newly formed Subsidiary (after giving
effect to the Bacharach Joint Venture) as a Joint Venture Subsidiary; and
(d) All of the representations and warranties of Borrower
contained in Section 5 hereof shall be true and correct and certified by a
certificate of an officer of Borrower.
SECTION 8. EXPENSES. Borrower agrees to pay on demand all
reasonable out-of-pocket costs and expenses of Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for
Agent with respect thereto.
SECTION 9. GOVERNING LAW. This Amendment shall be governed by,
construed and enforced in accordance with the laws of the State of New York,
without regard to conflict of laws principles thereof.
SECTION 10. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, which shall, collectively and separately, constitute
one agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
XXXXX TECHNOLOGIES, INC.
By: /s/
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior VP & Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION, as Agent and
Lender
By: /s/
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
BANK OF AMERICA, N.A. (formerly NationsBank, N.A.), as
Lender
By: /s/
-------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
NBD BANK, as Lender
By: /s/
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: First Vice President
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ABN AMRO BANK, N.V., as Lender
By: /s/
-------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx / Xxxxxxx X. Xxxxx
Title: Vice President / Vice President
NATIONAL CITY BANK, as Lender
By: /s/
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE HUNTINGTON NATIONAL BANK, as Lender
By: /s/
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Portfolio Manager
PNC BANK, NATIONAL ASSOCIATION, as Lender
By: /s/
-------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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AMSOUTH BANK, as Lender
By: /s/
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney in Fact
THE PROVIDENT BANK, as Lender
By: /s/
-------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
STAR BANK, N.A., as Lender
By: /s/
-------------------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Vice President
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