AMENDMENT AND WAIVER NO. 5
AMENDMENT AND WAIVER NO. 5 (this "Amendment"), dated as of April __, 2000,
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, on behalf of Xxxxx Health & Safety International Oy,
its wholly owned Finnish subsidiary to be incorporated ("Xxxxx XXX"), has
entered into that certain Share Purchase Agreement dated as of March 23, 2000
with Kemira Oyj to provide for the acquisition by Xxxxx XXX from Kemira Oyj of
all of the outstanding shares of capital stock of Kemira Safety Oy, a Finnish
company ("Kemira"; Xxxxx XXX and Kemira are collectively referred to herein as
the "Xxxxx XXX Group"), in consideration of approximately $17,150,000 (together
with all schedules, annexes and exhibits thereto and related documents
referenced therein, the "Purchase Agreement");
WHEREAS, Borrower has requested that: (a) Agent and Lenders consent to
Borrower entering into the Purchase Agreement and the other transactions
contemplated under the Purchase Agreement (the "Kemira Acquisition"); (b) Agent
and Lenders waive certain provisions of the Credit Agreement that would
otherwise prohibit the Kemira Acquisition; and (c) certain provisions of the
Credit Agreement be waived or amended to facilitate the continuing operation of
the business of the Xxxxx XXX Group following the consummation of the Kemira
Acquisition; 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 6 hereof, Agent and each Lender party hereto
hereby (a) consents, pursuant to Section 11.1 of the Credit Agreement, to the
Kemira Acquisition; and (b) waives the provisions of Sections 1.3, 1.7, 5.1(d),
5.12, 6.1, 6.2, 6.5, and 6.14 of the Credit Agreement to the extent, but only
to the extent, such provisions would prohibit the Kemira Acquisition, the
subsequent merger or other consolidation of
Kemira Safety Oy into Xxxxx XXX, and the continuing operation of the business
of the Xxxxx XXX Goup following the consummation of the Kemira Acquisition.
SECTION 2. The Credit Agreement is hereby amended as follows:
(a) AMENDMENT TO SECTION 5.11(b) OF CREDIT AGREEMENT. Section
5.11(b) of the Credit Agreement is amended by inserting immediately following
the phrase "Borrower Pledge Agreement" the phrase ", provided that only 65% of
the Stock of any Unrestricted Subsidiary which is a Foreign Subsidiary shall
secure the Obligations".
(b) AMENDMENTS TO SECTION 6.3 OF CREDIT AGREEMENT. (i) Section 6.3
of the Credit Agreement is amended by deleting the phrase "$5,000,000" in
clause (iii) thereof and substituting in lieu thereof the phrase "$10,000,000".
(ii) Section 6.3 of the Credit Agreement is further amended by
inserting the following sentence at the end thereof:
"Borrower shall not permit Xxxxx Health & Safety International
Oy and Kemira Safety Oy to create, incur, assume or permit any
Indebtedness owing to third parties in excess of $5,000,000 in
the aggregate during the term of this Agreement".
(c) AMENDMENT TO SECTION 6.4 OF CREDIT AGREEMENT. Section 6.4 of
the Credit Agreement is amended by inserting at the end of clause (ii) of
subsection (a) thereof the following: ", and PROVIDED, HOWEVER, that Borrower
may extend loans to Xxxxx Health & Safety International Oy and Kemira Safety Oy
in an aggregate principal amount not to exceed $10,000,000 during the term of
this Agreement".
(d) AMENDMENT TO SECTION 6.6 OF CREDIT AGREEMENT. Section 6.6 of
the Credit Agreement is amended by (i) deleting the word "and" immediately
prior to the phrase "(vi)" and substituting in lieu thereof a comma, and (ii)
inserting the following at end thereof: ", and (vii) guarantees by Borrower of
the obligations of Xxxxx Health & Safety International Oy and Kemira Safety Oy
up to an aggregate of $5,000,000 at any one time".
(e) AMENDMENT TO SECTION 6.16 OF CREDIT AGREEMENT. Section 6.16 of
the Credit Agreement is amended by inserting the following at the end thereof:
", except the accounts of Xxxxx Health & Safety International Oy and Kemira
Safety Oy shall not be Blocked Accounts".
(f) AMENDMENT TO SECTION 11.10 OF CREDIT AGREEMENT. Section
11.10(c) of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting the following in lieu thereof:
"(c) If to Borrower, at:
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Xxxxx Technologies, Inc.
One Chagrin Highlands
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
With copies to:
Xxxxx Technologies, Inc.
One Chagrin Highlands
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
and
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000"
SECTION 3. AMENDMENT TO SCHEDULE 3.9 TO CREDIT AGREEMENT.
Schedule 3.9, Part A, to the Credit Agreement is hereby amended by inserting
"Kemira Safety Oy" and "Xxxxx Health & Safety International Oy" at the end
thereof each as an Unrestricted Subsidiary as follows:
PERCENTAGE
OF
SECURITIES
OWNED
DIRECTLY MATERIAL
JURISDICTION OF AND OUTSTANDING OPERATIONS/
NAME SHAREHOLDERS INCORPORATION INDIRECTLY SHARES ASSETS
---- ------------ ------------- ---------- ------ ------
KEMIRA SAFETY XXXXX HEALTH FINLAND 100% 260,000 YES
OY & SAFETY (COMMON)
INTERNATIONAL
OY
XXXXX HEALTH STI FINLAND 100% 800 YES
& SAFETY (COMMON)
INTERNATIONAL
OY
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SECTION 4. 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 this Amendment 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 5. 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 and the other Loan Documents 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 6. 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;
(b) A copy of the fully and duly executed Purchase Agreement;
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(c) A duly executed amendment to Borrower Pledge Agreement in
respect of 65% of the outstanding Stock of Xxxxx XXX and share certificates
representing such Stock (with executed undated stock powers attached thereto);
(d) Duly executed original copies of opinions of counsel for
Borrower, together with any local counsel opinions requested by Agent, dated
the date of the closing of Kemira Acquisition and addressed to Agent, on behalf
of itself and Lenders; and
(e) All of the representations and warranties of Borrower contained
in Section 4 hereof shall be true and correct and certified by a certificate of
an officer of Borrower.
SECTION 7. 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 8. 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 9. 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:_________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:___________________________
Name:
Title:
BANK OF AMERICA, N.A. (formerly
NationsBank, N.A.), as Lender
By:___________________________
Name:
Title:
BANK ONE, MICHIGAN (formerly,
NBD Bank), as Lender
By:___________________________
Name:
Title:
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ABN AMRO BANK, N.V., as Lender
By:___________________________
Name:
Title:
NATIONAL CITY BANK, as Lender
By:___________________________
Name:
Title:
THE HUNTINGTON NATIONAL BANK, as Lender
By:___________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Lender
By:___________________________
Name:
Title:
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AMSOUTH BANK, as Lender
By:___________________________
Name:
Title:
THE PROVIDENT BANK, as Lender
By:___________________________
Name:
Title:
FIRSTAR BANK, N.A. (formerly,
Star Bank, N.A.), as Lender
By:___________________________
Name:
Title:
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