1
EXHIBIT 4(a)
AMENDMENT
TO
CREDIT AGREEMENT
This Amendment to Credit Agreement (this "Amendment"), dated as of
August 30, 1995, is entered into by and among SUDBURY, INC.
(Borrower), NATIONAL CITY BANK and STAR BANK, NATIONAL ASSOCIATION (together
"Banks") and NATIONAL CITY BANK in its capacity as agent of the Banks
("NCB-Agent") for the purposes of the Credit Agreement referred to below and
the Related Writings.
WITNESSETH:
WHEREAS, the parties have entered into a Credit Agreement dated May
30, 1995 (the "Credit Agreement"; all terms used in the Credit Agreement
being used herein with the same meaning), which sets forth the terms and
conditions upon which Borrower may obtain Revolving Loans and Subject LCs
from time to time; and
WHEREAS, the parties desire to amend certain provisions of the
Credit Agreement to provide that NCB-Agent will, in NCB's name but only as
agent for the Banks and subject to the terms and conditions of the Credit
Agreement as amended, issue Subject LCs for the account of any Company as
Borrower may from time to time request ; and
WHEREAS, the parties also wish to evidence the agreement of Borrower
to pay to NCB-Agent a $2,000.00 documentation fee in consideration of
NCB-Agent's preparation of this Amendment; and
NOW, THEREFORE, in consideration of the premises above and the
mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION I - AMENDMENTS TO CREDIT AGREEMENT
------------------------------
A. The first paragraph of section 2C of the Credit Agreement is
hereby amended in its entirety to read as follows:
"2C. LETTERS OF CREDIT -- NCB-Agent and the Banks agree that so
long as all of the Revolving Commitments remain in effect NCB-Agent
will, in NCB's name but only as agent for the Banks, issue such
standby letters of credit (each, a Subject LC) for the account of
any Company as Borrower may from time to time request subject,
however, to the conditions of this Agreement."
B. Subsection 2C.04 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"2C.04 CREDIT REQUESTS -- Each request by Borrower for a Subject LC
shall be in writing and shall be given not later than 12:00 noon of
the third (3rd) Banking Day prior to the day it is to be issued.
Whenever Borrower desires to have a Subject LC issued, Borrower
shall execute and deliver to NCB-Agent an appropriate Credit Request
which shall be irrevocable and shall be in the form and substance
of EXHIBIT E to this Agreement with the blanks appropriately filled,
together with an Application for Irrevocable Standby Letter of
Credit and Reimbursement Agreement and Security Agreement (each a
"Reimbursement
13
2
and substance as NCB-Agent or Banks shall require, which document shall
be executed by the account party of the Subject LC, and by Borrower as
co-applicant if Borrower is not the account party."
C. The Credit Agreement shall be amended by inserting immediately after
subsection 2C.07 thereof and immediately before section 3A thereof the
following section 2D:
"2D. GUARANTY OF COMPANY OBLIGATIONS -- Borrower hereby absolutely and
unconditionally guarantees the prompt payment in full of all Debt
(collectively, the "Guaranteed Debt") of the Companies or any of them
as and when the respective parts thereof become due, whether by lapse
of time, by acceleration of maturity or otherwise, including, without
limitation, all such Debt incurred pursuant to any Reimbursement
Agreement.
2D.01 If the Guaranteed Debt or any part thereof shall not be
paid in full when due, NCB-Agent, for the benefit of the
Banks, shall immediately have the right at all times
thereafter to proceed directly against Borrower whether or not
NCB-Agent shall have theretofore proceeded or be then
proceeding against the other Companies or any of them or
against any other obligors or security, if any. NCB-Agent in
its discretion may proceed against any or all obligors or any
or all security and exercise its other rights and remedies in
each case either simultaneously or separately and, in any
event, at such time or times, with such order of priority and
as often as NCB-Agent in its discretion may from time to time
deem expedient. Borrower agrees that at NCB-Agent's
discretion Borrower, each other Company and every other
existing or future obligor, if any, may be deemed to be
jointly and severally liable for the payment of the Guaranteed
Debt.
2D.02 Borrower's liabilities and other obligations under
this section 2D are unconditional and effective immediately,
and shall remain in full effect until the payment in full of
the Guaranteed Debt, regardless of the lapse of time,
regardless of the fact that there may be a time or times when
no Guaranteed Debt is outstanding, regardless of any act,
omission or course of dealing whatever on NCB-Agent or any
Bank's part, and regardless of any other event, condition or
thing. Without limiting the generality of the foregoing,
neither the amount of the Guaranteed Debt for purposes of this
section 2D nor Borrower's liability under this section 2D
shall be diminished or impaired by:
(a) NCB-Agent or any Bank's granting any credit to
Borrower's Subsidiaries or any of them, whether or
not liability therefor constitutes Guaranteed Debt,
or any failure or refusal of NCB-Agent or any Bank to
grant any other credit to Borrower's Subsidiaries or
any of them even if NCB-Agent or a Bank thereby
breaches any duty or commitment to Borrower,
Borrower's Subsidiaries or any of them or any other
Person,
(b) the application by NCB-Agent or any Bank of
credits, payments or proceeds to any portion of the
Debt of Borrower's Subsidiaries or any of them that
is not Guaranteed Debt,
14
3
(c) any extension, renewal or refinancing of all or
any part of the Debt of Borrower's Subsidiaries or
any of them,
(d) any amendment, restatement or other modification
of any kind in, to or of any Reimbursement Agreement
or other Related Writing, or any consent or other
indulgence granted to any obligor, or any waiver of
any default under any Reimbursement Agreement or
other Related Writing,
(e) any acceptance of security for or any other
obligor on all or any part of the Debt of Borrower's
Subsidiaries or any of them, or any release of any
security or other obligor, whether or not NCB-Agent
or Banks receive consideration for the release,
(f) any discharge of all or any part of the Debt of
Borrower's Subsidiaries or any of them under any
bankruptcy or insolvency law or otherwise,
(g) NCB-Agent or a Bank's failure to make any
presentment or demand for payment, to assert or
perfect any claim, demand or interest, to enforce any
right or remedy, to receive or review financial
statements of or other information about any obligor,
or to exercise any other diligence in monitoring any
obligor or other security for all or any part of the
Debt of Borrower's Subsidiaries or any of them, or
any delay or neglect by NCB-Agent or a Bank in
respect of all or any part of the Debt of Borrower's
Subsidiaries or any of them or any security therefor,
(h) any failure to give Borrower notice of (i) the
making of any loan or other credit extension or the
terms, conditions, and other provisions applicable
thereto, (ii) any dishonor by Borrower's Subsidiaries
or any of them or any other obligor, (iii) the
inaccuracy or incompleteness of any representation,
warranty or other statement made by any obligor, or
(iv) any other event, condition or thing, or
(i) any defense that may now or hereafter be
available to Borrower or any other obligor, whether
based on suretyship, impairment of collateral, accord
and satisfaction, breach of warranty, breach of
contract, failure of consideration, tort, lack of
capacity, usury or otherwise, or any illegality,
invalidity or unenforceability of all or any part of
the Debt of Borrower's Subsidiaries or any of them or
of any Reimbursement Agreement or other Related
Writing.
2D.03 Borrower hereby (a) waives all now existing or
hereafter arising rights to recoup or offset any obligation
of Borrower under this Agreement against any claim or right
of Borrower against Bank, (b) waives all rights of
exoneration now or hereafter arising out of or in connection
with this section 2D and (c) agrees that unless and until
all of the Debt of Borrower's Subsidiaries or any of them
shall have been paid in full, Borrower will not assert
against any of its Subsidiaries or any of their respective
properties any rights (including, without limitation,
contribution, indemnification, reimbursement, and
subrogation) now or hereafter arising (whether
15
4
by contract, operation of law or otherwise) out of or in
connection with this section 2D."
D. Section 9 of the Credit Agreement is hereby amended by inserting,
in appropriate alphabetical order, the following definitions of "Guaranteed
Debt" and "Reimbursement Agreement":
"Guaranteed Debt is defined in section 2D;"
---------------
"Reimbursement Agreement is defined in subsection 2C.04;"
-----------------------
SECTION 11 - CONDITIONS PRECEDENT
--------------------
It is a condition precedent to the effectiveness of this Amendment
that, prior to or on the date hereof, the following items shall have been
delivered to NCB-Agent (in form and substance acceptable to NCB-Agent):
(A) an Acknowledgment of Receipt of a copy of, and Consent and
Agreement to the terms of, this Amendment by each Company (other than
Borrower) with respect to a certain Continuing Guaranty of Payment
executed and delivered to NCB-Agent by such entities and dated May 30.
1995;
(B) a Certificate, dated as of the date hereof, of the secretary of
Borrower certifying (1) that Borrower's Certificate of Incorporation
and By-Laws have not been amended since the execution of the Credit
Agreement (or certifying that true, correct and complete copies of any
amendments are attached), (2) that copies of resolutions of the Board
of Directors of Borrower are attached with respect to the approval of
this Amendment and of the matters contemplated hereby and authorizing
the execution, delivery and performance by Borrower of this Amendment
and (3) as to the incumbency and signatures of the officers of
Borrower signing this Amendment;
(C) a non-refundable documentation fee to NCB-Agent (for its own
account) in the amount of $2,000.00 in consideration of NCB-Agent's
preparation of this Amendment; and
(D) Such other documents as NCB-Agent may request to implement this
Amendment and the transactions contemplated hereby.
If NCB-Agent or Banks shall consummate the transactions contemplated hereby
prior to the fulfillment of any of the conditions precedent set forth above,
the consummation of such transactions shall constitute only an extension of
time for the fulfillment of such conditions and not a waiver thereof.
SECTION III - REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower hereby represents and warrants to each of the other parties
to this Amendment that
(A) none of the representations and warranties made in the Credit
Agreement has ceased to be true and complete in any material respect
as of the date hereof; and
(B) as of the date hereof no "Default Under This Agreement" has
occurred and is continuing.
16
5
SECTION IV - ACKNOWLEDGMENTS CONCERNING OUTSTANDING LOANS
--------------------------------------------
Borrower acknowledges and agrees that, as of the date hereof, all of
Borrower's outstanding loan obligations to Banks are owed without any
offset, deduction, defense, claim or counterclaim of any nature whatsoever.
SECTION V - REFERENCES
----------
On and after the effective date of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", or words of
like import referring to the Credit Agreement, and each reference in the
Revolving Notes or other Related Writings to the "Credit Agreement",
"thereof", or words of like import referring to the Credit Agreement shall
mean and refer to the Credit Agreement as amended hereby. The Credit
Agreement, as amended by this Amendment, is and shall continue to be in full
force and effect and is hereby ratified and confirmed in all respects. The
execution, delivery and effectiveness of this Amendment shall not operate as
a waiver of any right, power or remedy of NCB-Agent or Banks under the
Credit Agreement or constitute a waiver of any provision of the Credit
Agreement except as specifically set forth herein. From and after the date
of this Amendment references in the Credit Agreement to EXHIBIT G shall be
deemed to be references to the form of the exhibit attached hereto as EXIBIT
A.
SECTION VI - COUNTERPARTS AND GOVERNING LAW
------------------------------
This Amendment may be executed in any number of counterparts, each
counterpart to be executed by one or more of the parties but, when taken
together, all counterparts shall constitute one agreement. This Amendment,
and the respective rights and obligations of the parties hereto, shall be
construed in accordance with and governed by Ohio law.
IN WITNESS WHEREOF, the Borrower, NCB-Agent and the Banks have caused
this Amendment to be executed by their authorized officers as of the date
and year first above written.
NATIONAL CITY BANK, AGENT SUDBURY, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- ---------------------------------
Printed Name: Xxxxxxx X. Xxxxx Printed Name: Xxxxxxx X. Xxxxxx
----------------- -----------------------
Title: Vice President Title: Chairman & Chief Executive Officer
----------------------- ----------------------------------
NATIONAL CITY BANK SUDBURY, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Printed Name: Xxxxxxx X. Xxxxx Printed Name: Xxxx X. Xxxxx
----------------- -----------------------
Title: Vice President Title: Vice President And CFO
------------------------ ------------------------------
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Printed Name: Xxxx X. Xxxxxxx
-----------------
Title: Vice President
-----------------------
17
6
Exhibit A
---------
Form of
-------
Application for Irrevocable Standby Letter of Credit
----------------------------------------------------
and
---
Reimbursement Agreement and Security Agreement
----------------------------------------------
18
