EXHIBIT 10.9
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of December 31, 1998, among ONEIDA ROSTONE CORP.,
a New York corporation ("Borrower"); REUNION INDUSTRIES, INC., a Delaware
corporation, and DPL ACQUISITION CORP., a Delaware corporation (each a
"Guarantor") and together the "Guarantors"); THE CIT GROUP/BUSINESS CREDIT, INC.
("CITBC") as agent for the Lenders whose names are set forth on Schedule I to
the Credit Agreement referred to below (each a "Lender" and collectively the
"Lenders" and CITBC as such agent being the "Agent"); and the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower, Guarantors, Agent and the Lenders are parties to that
certain Loan and Security Agreement, dated as of October 16, 1998 (as heretofore
and hereafter amended, modified or supplemented from time to time in accordance
with its terms, the "Credit Agreement"); and
WHEREAS, Borrower has requested that Agent and Lenders amend the Credit
Agreement as hereinafter set forth; and
WHEREAS, Agent and the Required Lenders have agreed to amend the Credit
Agreement on the terms and subject to the conditions hereinafter set forth;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and subject to the fulfillment of the conditions set forth
below, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise specifically defined herein, all
capitalized terms used herein shall have the respective meanings ascribed to
such terms in the Credit Agreement.
2. Amendment to Credit Agreement. Upon the Effective Date, Section 8.8 of
the Credit Agreement shall be amended by deleting the reference to the term
"EBIT" contained therein and substituting in place thereof the term "EBITDA".
3. Representations and Warranties. Borrower and each Guarantor represents
and warrants as follows (which representations and warranties shall survive the
execution and delivery of this Amendment):
(a) Borrower and each Guarantor has taken all necessary action to authorize
the execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by Borrower and
each Guarantor. This Amendment and the Credit Agreement as amended hereby
constitute the legal, valid and binding obligation of Borrower and each
Guarantor, enforceable against each of them in accordance with their respective
terms, subject to applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium and similar laws affecting the enforcement of creditors'
rights generally and by general equity principles.
(c) No consent or approval of any person, firm, corporation or entity, and
no consent, license, approval or authorization of any Governmental Authority is
or will be required in connection with the execution, delivery, performance,
validity or enforcement of this Amendment other than any such consent, approval,
license or authorization which has been obtained and remains in full force and
effect.
(d) After giving effect to this Amendment, Borrower and each Guarantor is
in compliance with all of the various covenants and agreements set forth in the
Credit Agreement and each of the other Loan Documents.
(e) After giving effect to this Amendment, no event has occurred and is
continuing which constitutes a Default or an Event of Default.
(f) All representations and warranties contained in the Credit Agreement
and each of the other Loan Documents are true and correct in all material
respects as of the date hereof, except to the extent that any representation or
warranty relates to a specified date, in which case such are true and correct in
all material respects as of the specific date to which such representations and
warranties relate.
4. Effective Date. The Amendment to the Credit Agreement contained herein
shall become effective on the date (the "Effective Date") that this Amendment
has been duly executed and delivered by Borrower, each Guarantor, Required
Lenders and Agent.
5. Fees and Expenses. Borrower agrees to reimburse Agent for all reasonable
out-of-pocket fees, costs and expenses, including the reasonable fees, costs
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and expenses of counsel or other advisors in connection with the preparation,
execution, and delivery of this Amendment.
6. Continued Effectiveness. The term "Agreement", "hereof", "herein" and
similar terms as used in the Credit Agreement, and references in the other Loan
Documents to the Credit Agreement, shall mean and refer to, from and after the
Effective Date, the Credit Agreement as amended by this Amendment. Borrower and
each Guarantor hereby agrees that all of the covenants and agreements contained
in the Credit Agreement and the Loan Documents are hereby ratified and confirmed
in all respects.
7. Counterparts. This Amendment may be executed in counterparts, each of
which shall be an original, and all of which, taken together, shall constitute a
single instrument. Delivery of an executed counterpart of a signature page to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
8. Governing Law. THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly
executed by their respective officers as of the date first written above.
Borrower
ONEIDA ROSTONE CORP
By: Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
Guarantors
REUNION INDUSTRIES, INC.
By: Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
DPL ACQUISITION CORP.
By: Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
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Agent
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Agent
By: Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Lender
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By: Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
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