AMENDMENT NO. 9 TO CREDIT AND SECURITY AGREEMENT
Exhibit 4.2
| AMENDMENT NO. 9 TO CREDIT AND SECURITY AGREEMENT | ||
This Amendment No. 9 to Credit and Security Agreement (“Amendment No. 9”) dated effective as
of the 30 day of April, 2007, by and between COHESANT TECHNOLOGIES INC., a Delaware corporation
(hereinafter referred to as “Borrower”), and REGIONS BANK as successor by merger to UNION PLANTERS
BANK, N.A., a banking institution chartered under the laws of the state of Alabama (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, as further amended by that certain
Amendment No. 4 to Credit and Security Agreement dated April 29, 2002, as further amended by that
certain Amendment No. 5 to Credit and Security Agreement dated March 25, 2003, as further amended
by that certain Amendment No. 6 to Credit and Security Agreement dated April 23, 2004,as further
amended by that certain Amendment No. 7 to Credit and Security Agreement dated April 29, 2005 and
as further amended by that certain Amendment No. 8 to Credit and Security Agreement dated April 26,
2006 (hereinafter referred to as “Agreement”); and
WHEREAS, the Borrower desires to renew and amend 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. 9.
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. 9. This Amendment No. 9 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. 9 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. 9, 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. 9, the credit facilities contemplated by this Amendment
No. 9 shall be made according to and pursuant to all conditions, covenants, representations and
warranties contained in the Agreement.
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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:
(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, 2008
(“Maturity”).
(b) Section 7.12.1 of the Agreement is hereby deleted.
(c) Section 7.12.3 of the Agreement is hereby amended and replaced with the following:
7.12.3 Coverage Ratio. Maintain a Coverage Ratio not less than 1.25 to 1.00
which shall be tested annually as of the end of Borrower’s fiscal year.
(d) The address for purposes of notices to the Bank as set forth in Section 13.11 of the
Agreement is hereby amended as follows:
If to Bank:
|
Regions Bank | |
| Xxx Xxxxxxx Xxxxxx | ||
| Xxxxx000 | ||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxxx X. Xxxxxxx | ||
| Telecopy: (000) 000-0000 |
Section 4. Conditions Precedent. This Amendment No. 9 shall become and be
deemed effective in accordance with its terms immediately upon the Bank receiving:
(a) Two (2) copies of this Amendment No. 9 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) 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:
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(a) This Amendment No. 9 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. 9 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. 9 or the Loan Documents.
(c) The Borrower hereby specifically confirms and ratifies its obligations, waivers and
consents under each of the Loan Documents.
(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) Except as previously disclosed to Bank, 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. 9 and all the documents executed contemporaneously herewith.
Section 6. Affirmative Covenants. By entering into this Amendment No. 9,
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. 9.
Section 7. Governing Law. This Amendment No. 9 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. 9 are
for convenience only and shall not be read or construed as limiting the substance or generality of
this Amendment No. 9.
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. 9 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. 9 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. 9 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. 9, 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. 9 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.
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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. 9,
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.
IN WITNESS WHEREOF, COHESANT TECHNOLOGIES INC. and REGIONS BANK have caused this Amendment No.
9 to Credit and Security Agreement to be executed by their respective duly authorized officers
effective as of the date and year first written above.
(“Borrower”) |
By:
|
/s/ Xxxxxx Xxxxxx | |
Printed:
|
Xxxxxx Xxxxxx | |
Title:
|
Chief Financial Officer | |
REGIONS BANK |
(“Bank”) |
By:
|
/s/ Xxxxx X. Xxxxxxx | |
| Xxxxx X. Xxxxxxx, Vice President |
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