FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"),
made as of this 29th day of June, 1995 among Kuhlman Corporation,
a Delaware corporation (the "Borrower"), NationsBank of Georgia,
N.A. and The Chase Manhattan Bank, N.A. as Managing Agents (the
"Managing Agents"), and NationsBank of Georgia, N.A., The Chase
Manhattan Bank, N.A., The First National Bank of Boston, NBD
Bank, Harris Trust and Savings Bank, J.P. Morgan Delaware, and
Trust Company of Georgia Bank of Savannah, N.A. (collectively the
"Lenders"), and NationsBank of Georgia, N.A., as administrative
agent for the Lenders (the "Administrative Agent"),
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower, the Administrative Agent, the
Managing Agents and the Lenders are parties to that certain
Credit Agreement dated as of December 15, 1993, as amended by
that certain First Amendment to Credit Agreement dated as of
March 29, 1994, that certain Second Amendment to Credit Agreement
dated as of March 30, 1994, and that certain Third Amendment to
Credit Agreement dated as of December 31, 1994 (as so amended,
the "Credit Agreement"); and
WHEREAS, the parties to the Credit Agreement wish to amend
the Credit Agreement in certain respects as provided for herein;
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties agree that all capitalized terms used
herein shall have the meanings ascribed thereto in the Credit
Agreement, and further agree as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is
hereby amended by deleting the existing definitions of
"Applicable Margin," "Available Revolving Loan Commitment,"
"Borrowing Base," "Borrowing Base Deficiency," "Capital
Expenditures," "Cash Flow," "Commitment Ratios," "Eligible
Inventory," "Excess Cash Flow," "Fixed Charges," "Lenders,"
"Pricing Ratio," "Request for Advance," "Revolving Loan
Commitment," "Revolving Loan Notes," "Swing Line Commitment,"
"Swing Line Note," "Term Loan," "Term Loan Commitment" and "Term
Loan Notes" in their entireties and by substituting the following
therefor:
"`Applicable Margin' shall mean the respective interest
rate margin or fee percentage applicable to Advances,
Letters of Credit and commitment fees (as set forth in
Section 2.4(a) hereof) as of any date, which shall be
determined as follows. The Applicable Margin with respect
to any Advance, Letter of Credit or commitment fee as of any
date shall be determined based upon the Pricing Ratio, as
calculated by the Administrative Agent as of the end of each
fiscal quarter of the Borrower, in accordance with the
following chart:
Applicable Applicable
Applicable Applicable Margin for Margin for Applicable
For Margin for Margin for Standby Commercial Margin for
Pricing Base Rate LIBOR Letters of Letters of Commitment
Ratios of: Advances Advances Credit Credit Fee
- --------------------------------------------------------------------------------
Less than 1.00 to 1 0.00% 0.3750% 0.3750% 0.250% 0.1500%
Greater than or equal 0.00% 0.6250% 0.6250% 0.250% 0.2000%
to 1.00 or 1, but
less than 1.50 to 1
Greater than or equal 0.00% 0.8750% 0.8750% 0.500% 0.2500%
to 1.50 to 1, but
less than 2.00 to 1
Greater than or equal 0.25% 1.2500% 1.2500% 0.750% 0.3750%
to 2.00 to 1, but
less than 2.50 to 1
Greater than or equal 0.50% 1.7500% 1.7500% 0.875% 0.3750%
to 2.50 to 1, but
less than 3.00 to 1
Greater than or euqal 0.75% 2.0000% 2.0000% 1.000% 0.3750%
to 3.00 or 1
Changes in the Applicable Margin resulting from a change in
the Pricing Ratio shall become effective as of the first
Business Day of the second quarter following the quarter for
which the Pricing Ratio is being determined."
"`Available Revolving Loan Commitment' shall mean, as
of any date of determination: (a) so long as the Pricing
Ratio is less than or equal to 2.5 to 1, the Revolving Loan
Commitment, minus Swing Line Advances and Pro Rata Advances
under the Revolving Loan Commitment then outstanding, minus
L/C Obligations then outstanding, or (b) at all other times,
the lesser of (i) the Revolving Loan Commitment, minus Swing
Line Advances and Pro Rata Advances under the Revolving Loan
Commitment then outstanding, minus L/C Obligations then
outstanding, or (ii) the Borrowing Base minus Swing Line
Advances and Pro Rata Advances under the Revolving Loan
Commitment then outstanding, minus L/C Obligations then
outstanding."
"`Borrowing Base' shall mean, at any particular time,
the sum of:
(a) 80% of the Value of the Eligible Accounts; plus
(b) 55% of the Value of the Eligible Coleman Inventory;
plus
(c) 55% of the Value of the Eligible Schwitzer Inventory;
plus
(d) 45% of the Value of the Eligible Kuhlman Inventory;
minus the amount of reserves which the Administrative
Agent shall have established, in the exercise of its reasonable
business judgment, for such purposes as the Administrative Agent
shall have deemed necessary, including, without limitation, for
(i) price adjustments, damages, and unearned discounts;
(ii) shrinkage, spoilage and obsolescence of Inventory;
(iii) special order goods and deferred shipment sales; and
(iv) market value declines; minus, the portion of the Borrowing
Base attributed to any Independent Sales Representative Inventory
in excess of $2,000,000 in the aggregate."
"`Borrowing Base Deficiency' shall mean any condition
wherein the sum of (a) Pro Rata Advances and Swing Line Advances
outstanding under the Revolving Loan Commitment, plus (b) L/C
Obligations then outstanding exceeds the Borrowing Base as set
forth on the most recent Borrowing Base Certificate delivered to
the Administrative Agent or as otherwise determined by the
Administrative Agent; provided, however, that there shall not be
deemed to be a Borrowing Base Deficiency at any time that the
Borrowing Base is not applicable for the purpose of determining
(i) the Available Revolving Loan Commitment, and (ii) the amounts
to be advanced by the Lenders pursuant to Section 2.1(b) hereof."
"`Capital Expenditures' shall mean, for any period, the
aggregate of all expenditures made by the Borrower and its
Subsidiaries during such period which, in conformity with
GAAP, are required to be included or reflected on the
balance sheet as capital assets of such Persons; provided,
however, that expenditures for equipment or other capital
assets made with the proceeds of a trade-in or sale of
existing equipment or other capital assets owned by the
Borrower or any of the Borrower's Subsidiaries in the
ordinary course of business shall not be deemed to be
Capital Expenditures."
"`Cash Flow' shall mean, for the Borrower and its
Subsidiaries on a consolidated basis for any period, the sum
of (a) Operating Income, plus (b) Other Income, plus (c) to
the extent deducted in determining Operating Income,
depreciation, amortization and other non-cash charges, plus
(d) to the extent deducted in determining Operating Income
or Other Income for such period, (i) legal and accounting
expenses in an aggregate amount not to exceed $530,000
relating to the Borrower's proposed acquisition of
Communication Cable, Inc., (ii) cash severance and related
benefit payments in an aggregate amount not to exceed
$915,000 paid to employees of Kuhlman Electric Corporation,
a Delaware corporation, in connection with its down-sizing
during the 1994 calendar year, and (iii) legal, accounting
and other cash expenses incurred in conjunction with the
preparation for and closing of the Borrower's acquisition of
Schwitzer, all as determined in accordance with GAAP."
`Commitment Ratios' shall mean the percentages in which
the Lenders are severally bound to satisfy the Revolving
Loan Commitment or the Term Loan Commitment or the aggregate
of both such Commitments, as the context may require, which
are, as of the date of the Fourth Amendment to this
Agreement, as follows:
Portion of Revolving
Revolving Loan Portion of
Loan Commitment Term Loan
Lender Commitment Ratio Commitment
- --------------------------------------------------------------------------------
NationsBank $12,141,025.65 22.907595570% $10,717,948.73
of Georgia, N.A.
The Chase $12,141,025.65 22.907595570% $10,717,948.73
Manhattan
Bank, N.A.
The First $6,794,871.79 12.820512810% $6,025,641.02
National Bank
of Boston
NBD Bank $6,794,871.79 12.820512810% $6,025,641.02
Harris Trust $6,794,871.79 12.820512810% $6,025,641.02
and Savings Bank
J. P. Morgan $6,794,871,79 12.820512810% $6,025,641.02
Delaware
Trust Company $1,538,461.54 2.902757620% $1,461,538.46
of Georgia
Bank of Savannah, N.A.
Term Loan Aggregate
Commitment Commitment
Ratio Ratio
------------ ------------
NationsBank 22.804146230% 22.858974380%
of Georgia, N.A.
The Chase 22.804146230% 22.858974380%
Manhattan
Bank, N.A.
The First 12.820512810% 12.820512810%
National Bank
of Boston
NBD Bank 12.820512810% 12.820512810%
Harris Trust 12.820512810% 12.820512810%
and Savings Bank
J. P. Morgan 12.820512810% 12.820512810%
Delaware
Trust Company 3.109656300% 3.000000000%
of Georgia
Bank of Savannah, N.A.
The Commitment Ratios may change upon the sale of
assignments pursuant to Section 11.5 hereof."
"`Eligible Inventory' shall mean, collectively,
Eligible Coleman Inventory, Eligible Schwitzer Inventory and
Eligible Kuhlman Inventory."
"`Excess Cash Flow' shall mean, for the Borrower and
its Subsidiaries on a consolidated basis for any fiscal
year, the positive difference between (a) Cash Flow for such
year, minus, to the extent deducted in determining Operating
Income or Other Income for such period, (i) legal and
accounting expenses in an aggregate amount not to exceed
$530,000 relating to the Borrower's proposed acquisition of
Communication Cable, Inc., (ii) cash severance and related
benefit payments in an aggregate amount not to exceed
$915,000 paid to employees of Kuhlman Electric Corporation,
a Delaware corporation, in connection with its down-sizing
during the 1994 calendar year, and (iii) legal, accounting
and other cash expenses incurred in conjunction with the
preparation for and closing of the Borrower's acquisition of
Schwitzer, minus (b) the sum of (i) the lesser of
(A) Capital Expenditures actually made, or (B) $10,000,000,
plus (ii) interest expense (after giving effect to any
Interest Rate Hedge Agreements then in effect), plus (iii)
cash income taxes paid, plus (iv) mandatory payments of
principal in respect of Indebtedness for Money Borrowed,
plus (v) any optional prepayments of the Term Loan, plus
(vi) the greater of (A) dividends paid in cash by the
Borrower during such fiscal year up to an aggregate amount
of $8,000,000 for any year, or (B) $6,000,000, all as
determined in accordance with GAAP."
"`Fixed Charges' shall mean, for the Borrower and its
Subsidiaries on a consolidated basis for any period, the sum
of (a) interest expense (after giving effect to any Interest
Rate Hedge Agreements then in effect), plus (b) Capital
Expenditures (minus, for fiscal year 1994 only, $3,000,000),
plus (c) mandatory payments of principal in respect of
Indebtedness for Money Borrowed (minus (i) any prepayments
of Indebtedness for Money Borrowed arising in respect of the
Union County Industrial Facilities and Pollution Control
Financing Authority Industrial Revenue Bonds (Associated
Engineering Company Project), Series 1990, (ii) any
prepayments of Schwitzer Domestic Indebtedness, and (iii)
any prepayments of the Term Loan as required by Sections
2.6(a)(i) or 2.6(a)(ii) hereof), plus (d) Restricted
Payments or Restricted Purchases made in respect of the
capital stock of the Borrower (other than any purchase of
Schwitzer Warrants), all as determined in accordance with
GAAP."
"`Lenders' shall mean NationsBank of Georgia, N.A., The
Chase Manhattan Bank, N.A., The First National Bank of
Boston, NBD Bank, Harris Trust and Savings Bank, J.P. Morgan
Delaware, and Trust Company of Georgia Bank of Savannah,
N.A., together with any assignees thereof pursuant to
Section 11.5(b) hereof; and "Lender" shall mean any of the
foregoing Lenders."
"`Pricing Ratio' shall mean, for the Borrower and its
Subsidiaries on a consolidated basis, as of any date, the
ratio of (a) Indebtedness for Money Borrowed as of the end
of the most recently ended fiscal quarter for which the
Borrower's financial statements are required to have been
delivered to the Administrative Agent and the Lenders
pursuant to Section 6.2 hereof, to (b) Cash Flow for such
quarter and three (3) immediately preceding fiscal
quarters."
"`Request for Advance' shall mean any certificate
signed by an Authorized Signatory of the Borrower requesting
(a) an Advance hereunder which will increase the aggregate
amount of the Loans outstanding, or (b) a Letter of Credit
hereunder, which certificate shall be denominated a "Request
for Advance or Letter of Credit," and shall be in
substantially the form of Exhibit A to the Fourth Amendment
to this Agreement. Each Request for Advance or Letter of
Credit shall, among other things, (i) with respect to an
Advance, specify (A) the Commitment under which the Advance
is to be made, (B) the date of the Advance (which shall be a
Business Day), (C) the amount of the Advance, (D) the type
of Advance, and (E) with respect to LIBOR Advances, the
Interest Period selected by the Borrower; (ii) with respect
to the issuance of a Letter of Credit, specify (A) that the
requested Letter of Credit is either a Commercial Letter of
Credit or a Standby Letter of Credit, (B) the stated amount
of the Letter of Credit (which shall be in United States
Dollars), (C) the effective date (which shall be a Business
Day) for the issuance of such Letter of Credit, (D) the date
on which such Letter of Credit is to expire (which shall be
a Business Day and which shall be subject to Section 2.13(a)
hereof), (E) the Person for whose benefit such Letter of
Credit is to be issued, and (F) other relevant terms of such
Letter of Credit; and (iii) with respect to an Advance or
the issuance of a Letter of Credit, state that there shall
not exist, on the date of the requested Advance or Letter of
Credit and after giving effect thereto, a Default or an
Event of Default."
"`Revolving Loan Commitment' shall mean the several
obligations of the Lenders to advance the aggregate sum of
up to $53,000,000 to the Borrower in accordance with their
respective Commitment Ratios and pursuant to the terms
hereof, as such obligations shall be reduced from time to
time pursuant to Section 2.5 hereof, and as such obligations
may be further reduced from time to time pursuant to the
terms hereof."
"`Revolving Loan Notes' shall mean those certain
amended and restated promissory notes in the aggregate
original principal amount of $53,000,000, one issued to each
of the Lenders by the Borrower, each one substantially in
the form of Exhibit B to the Fourth Amendment to this
Agreement; any other promissory notes issued by the Borrower
to evidence Loans made under the Revolving Loan Commitment;
and any extensions, renewals or amendments to, or
replacements of, the foregoing."
"`Swing Line Commitment' shall mean, as of any date,
the obligation of NationsBank to advance to the Borrower
pursuant to Section 2.1(d) hereof, the aggregate sum equal
to the lesser of (a) $10,000,000, or (b) the Available
Revolving Loan Commitment."
"`Swing Line Note' shall mean that certain amended and
restated promissory note in the original principal amount of
$10,000,000 issued to NationsBank by the Borrower,
substantially in the form of Exhibit C to the Fourth
Amendment to this Agreement; any other promissory notes
issued by the Borrower to evidence the Loans made under the
Swing Line Commitment; and any extensions, renewals or
amendments to, or any replacements of, the foregoing."
"`Term Loan' shall mean the Loans advanced to the
Borrower under the Term Loan Commitment on the Agreement
Date and upon the making of the Supplemental Term Loan to
the Borrower."
"`Term Loan Commitment' shall mean the several
obligations of the Lenders to advance the sum of up to
$47,000,000 to the Borrower in accordance with their
respective Commitment Ratios and pursuant to the terms
hereof, as such obligations may be reduced from time to time
pursuant to the terms hereof."
"`Term Loan Notes' shall mean those certain amended and
restated promissory notes dated as of the date of the Fourth
Amendment to this Agreement in the aggregate original
principal amount of $47,000,000, one issued to each of the
Lenders by the Borrower, each one substantially in the form
of Exhibit D to the Fourth Amendment to this Agreement; any
other promissory notes issued by the Borrower to evidence
Loans made under the Term Loan Commitment; and any
extensions, renewals or amendments to, or any replacements
of, the foregoing."
(b) Article 1 of the Credit Agreement, Definitions, is
hereby further amended by deleting the parenthetical phrase
appearing before clause (a) of the definition of "Eligible
Kuhlman Inventory" in its entirety and inserting the following
parenthetical phrase in lieu thereof:
"(other than Coleman and Schwitzer and their respective
Subsidiaries)"
(c) Article 1 of the Credit Agreement, Definitions, is
hereby further amended by adding the parenthetical phrase
"(without duplication)" immediately before the comma in the
phrase "with respect to any Person," in the first line of the
definition of "Indebtedness for Money Borrowed."
(d) Article 1 of the Credit Agreement, Definitions, is
hereby further amended by deleting existing clause (g)(iv) of the
definition of "Permitted Liens" and inserting the following
clause (g)(iv) in lieu thereof:
"(iv) the aggregate outstanding amount of all
Indebtedness secured by Purchase Money Security
Interests shall not at any time exceed an amount
equal to $3,500,000;"
(e) The definition of "Permitted Liens" contained in
Article 1 of the Credit Agreement is hereby further amended by
(i) deleting the period at the end of clause (h) of the
definition of "Permitted Liens" and inserting a semi-colon in
lieu thereof, and (ii) inserting the following new clauses (i),
(j) and (k) after existing clause (h) thereof:
"(i) Liens on the assets of Schwitzer (Europe) Limited
or Schwitzer (Europe) Holdings Limited located in the United
Kingdom which secure Indebtedness of such Person(s) in an
aggregate outstanding amount not to exceed $5,000,000 at any
time;
(j) Liens on the assets of Lacom Schwitzer
Equipamentos, Ltda. located in Brazil which secure
Indebtedness of such Person in an aggregate outstanding
amount not to exceed $3,000,000 at any time; and
(k) Liens securing Indebtedness permitted under
Section 7.1(j) hereof in an aggregate amount not to exceed
$10,000,000 at any time; provided that, of such $10,000,000
basket, only $2,000,000 of such secured Indebtedness may be
Indebtedness other than Indebtedness secured by Liens which
are attached to property or assets acquired by the Borrower
or any of its Subsidiaries in accordance herewith at the
time of such acquisition, and which attach only to the
property or assets acquired in such transaction and do not
extend to or cover any other assets or properties of the
Borrower or any of its Subsidiaries."
(f) Article 1 of the Credit Agreement, Definitions, is
hereby further amended by adding the following definitions in the
correct alphabetical order:
"`Eligible Schwitzer Inventory' shall mean, at any
particular date, the portion of the Inventory of Schwitzer
and its Subsidiaries which: (a) is, in the option of the
Administrative Agent, not obsolete, slow-moving,
unmerchantable, off-season, out-of-season, or in the case of
raw materials and work-in-process Inventory, unworkable, and
as to finished goods Inventory, is readily salable in its
current form; (b) as to finished goods Inventory is new and
does not constitute any finished goods that were returned to
Schwitzer or any of its Subsidiaries due to defect or
damage; (c) in the case of work-in-process Inventory on such
date, is in the process of being manufactured on current
running lines and in accordance with current manufacturing
techniques and styles and (d) fulfills each and every one of
the Inventory Eligibility Requirements."
"`Schwitzer' shall mean Schwitzer, Inc., a Delaware
corporation."
"`Schwitzer Domestic Indebtedness' shall mean
Indebtedness of Schwitzer outstanding under that certain
$15,000,000 Note Agreement dated as of April 15, 1992, among
Schwitzer, Schwitzer U.S. Inc., and certain affiliates of
Massachusetts Mutual Life Insurance Company, as amended, and
that certain $22,000,000 revolving credit agreement dated as
of April 30, 1992, among Schwitzer, Schwitzer U.S. Inc.,
Harris Trust and Savings Bank and Comerica Bank (formerly
known as Manufacturers Bank, N.A.), as amended."
"`Schwitzer Warrants' shall mean those certain warrants
to purchase shares of Schwitzer Common Stock pursuant to
that certain Note Agreement dated as of April 15, 1992,
among Schwitzer, Schwitzer U.S. Inc. and Massachusetts
Mutual Life Insurance Company, which warrants were converted
into warrants to purchase whole shares of Kuhlman Common
Stock in conjunction with the merger of Spinner Acquisition
Corp., a Delaware corporation and a wholly-owned Subsidiary
of the Borrower, with and into Schwitzer."
"`Shell Corporation' shall mean, as of any date of
determination, a Subsidiary of the Borrower which has assets
with a fair market value of less than $50,000 and no
liabilities."
"`Supplemental Term Loan' shall mean the Loans advanced
to the Borrower under the Term Loan Commitment in accordance
with Section 2.1(a) hereof on or after the date of the
Fourth Amendment to this Agreement, which Loans shall not
exceed $9,000,000 in the aggregate."
"`Value of the Eligible Schwitzer Inventory' shall
mean, at any particular date: (a) the value of the Eligible
Schwitzer Inventory, valued in accordance with the "First-
In, First-Out" method of accounting and otherwise in
accordance with GAAP, minus (b) the amount of any reserve
required by the Administrative Agent in the exercise of its
reasonable judgment."
2. Amendments to Article 2. Article 2 of the Credit
Agreement, Credit Facilities, is hereby amended as follows:
(a) Section 2.1(a). Section 2.1(a) of the Credit
Agreement, Term Loan Facility, is hereby amended by deleting
the existing Section 2.1(a) in its entirety and by inserting
the following in lieu thereof:
"(a) Term Loan Facility. The Lenders agree,
severally in accordance with their respective
Commitment Ratios with respect to the Term Loan
Commitment and not jointly, upon the terms and subject
to the conditions of this Agreement, to advance
$38,000,000 of the Term Loan on the Agreement Date and
to make the Supplemental Term Loan on or after the
effective date of the Fourth Amendment to this
Agreement. The Lenders acknowledge and agree that on
the date of the Fourth Amendment to this Agreement,
NationsBank and The Chase Manhattan Bank, N.A. shall
each purchase a participation from Trust Company of
Georgia Bank of Savannah, N.A. in an amount equal to
one-half of the principal amount necessary to cause
Trust Company of Georgia Bank of Savannah, N.A.,
NationsBank and The Chase Manhattan Bank, N.A. to have
Loans outstanding under the Term Loan Commitment in
accordance with their respective Commitment Ratios as
in effect as of the date of the Fourth Amendment to
this Agreement. Subject to the terms hereof, Advances
of the Term Loan may be repaid and then reborrowed as
provided in Sections 2.2(b)(ii) and 2.2(c)(ii) hereof
so as to change the Interest Rate Basis or Interest
Periods for Advances then outstanding; provided,
however, that there shall be no increase in the
principal amount of the Term Loan outstanding after the
Agreement Date (other than the increase in the
principal amount of the Term Loan pursuant to the
Supplemental Term Loan)."
(b) Section 2.1(b). Section 2.1(b) of the Credit
Agreement, Revolving Loan Facility, is hereby amended by
deleting the existing Section 2.1(b) in its entirety and by
inserting the following in lieu thereof:
"(b) Revolving Loan Facility. The Lenders agree,
severally in accordance with their respective
Commitment Ratios with respect to the Revolving Loan
Commitment and not jointly, upon the terms and subject
to the conditions of this Agreement, to lend and relend
to the Borrower on or prior to the Revolving Loan
Maturity Date amounts which in the aggregate at any one
time outstanding do not exceed: (i) so long as the
Pricing Ratio is less than or equal to 2.5 to 1, the
Revolving Loan Commitment minus L/C Obligations then
outstanding, minus Swing Line Advances then
outstanding, or (ii) at all other times, the lesser of
(A) the Borrowing Base or (B) the Revolving Loan
Commitment, minus L/C Obligations then outstanding,
minus Swing Line Advances then outstanding. If, at any
time, a Borrowing Base Deficiency exists, the Loans or
L/C Obligations in excess of the Borrowing Base shall
nevertheless constitute Obligations secured by the
Collateral and are entitled to all benefits thereof.
At no time shall the sum of (x) all Pro Rata Advances
under the Revolving Loan Commitment, plus (y) all Swing
Line Advances, plus (z) all L/C Obligations then
outstanding exceed (1) so long as the Pricing Ratio is
less than or equal to 2.5 to 1, the Revolving Loan
Commitment, or (2) at all other times, either the
Revolving Loan Commitment or the Borrowing Base then in
effect. The Lenders acknowledge and agree that on the
date of the Fourth Amendment to this Agreement,
NationsBank and The Chase Manhattan Bank, N.A. shall
each purchase a participation from Trust Company of
Georgia Bank of Savannah, N.A. in an amount equal to
one-half of the principal amount necessary to cause
Trust Company of Georgia Bank of Savannah, N.A.,
NationsBank and The Chase Manhattan Bank, N.A. to have
Loans outstanding under the Revolving Loan Commitment
in accordance with their respective Commitment Ratios
as in effect as of the date of the Fourth Amendment to
this Agreement."
(c) Section 2.2(d). Section 2.2(d) of the Credit
Agreement, Swing Line Advances, is hereby amended by
deleting the existing Section 2.2(d) in its entirety and by
inserting the following in lieu thereof:
"(d) Swing Line Advances. The Borrower shall give
NationsBank, in the case of Swing Line Advances,
irrevocable written notice or notice by telephone or
telecopy. NationsBank and the Borrower shall agree
upon the rate of interest for each such Advance. The
rate of interest applicable to a Swing Line Advance
shall be either a floating rate of interest or a fixed
rate of interest, as determined by the agreement of the
Borrower and NationsBank. The Borrower may prepay
Swing Line Advances at any time. The Borrower shall
pay principal and interest in respect of each Swing
Line Advance ON DEMAND by NationsBank.
(d) Section 2.4(a). Section 2.4(a) of the Credit
Agreement, Revolving Loan Commitment Fee, is hereby amended
by deleting the existing Section 2.4(a) in its entirety and
by inserting the following in lieu thereof:
"(a) Revolving Loan Commitment Fee. The Borrower
agrees to pay to the Lenders, in accordance with their
respective Commitment Ratios with respect to the
Revolving Loan Commitment, a commitment fee on the
difference between (i) the Revolving Loan Commitment,
minus (ii) Pro Rata Advances outstanding under the
Revolving Loan Commitment, minus (iii) L/C Obligations
then outstanding, (A) for each day from the Agreement
Date through the effective date of the Fourth Amendment
to this Agreement, at the rate of three-eighths of one
percent (3/8%) per annum, and (B) for each day from the
effective date of the Fourth Amendment to this
Agreement through the Revolving Loan Maturity Date, at
the rate per annum equal to the Applicable Margin with
respect to the commitment fee; provided, however, that
no such fee shall be payable to NationsBank in respect
of the amount of Swing Line Advances outstanding from
time to time. Such commitment fee shall be computed on
the basis of a year of 360 days for the actual number
of days elapsed, shall be payable quarterly in arrears
on the last day of each calendar quarter commencing on
December 31, 1993, and on the Revolving Loan Maturity
Date, and shall be fully earned when due and non-
refundable when paid."
(e) Section 2.4(b). Section 2.4(b) of the Credit
Agreement, Letter of Credit Fees, is hereby amended by
inserting the phrase "with respect to the Revolving Loan
Commitment" immediately following the phrase "Commitment
Ratios" but before the comma appearing in the second line of
the first sentence of such Section.
(f) Section 2.6(a). Section 2.6(a) of the Credit
Agreement, Mandatory Prepayments, is hereby amended as
follows:
(i) Section 2.6(a)(i). Section 2.6(a)(i) of the
Credit Agreement, Excess Cash Flow, is hereby amended
by deleting the existing Section 2.6(a)(i) in its
entirety and by inserting the following in lieu
thereof:
"(i) Excess Cash Flow. For each fiscal year
as to which the Pricing Ratio is greater than 2.5
to 1 (as determined as of the end of such fiscal
year), the Borrower shall, not later than April
15th of the following fiscal year, prepay the
outstanding principal amount of the Term Loan in
an amount equal to fifty percent (50%) of Excess
Cash Flow for the fiscal year most recently
ended."
(ii) Section 2.6(a)(ii). Section 2.6(a)(ii) of
the Credit Agreement, Asset Sales Proceeds, is hereby
amended by deleting the existing Section 2.6(a)(ii) in
its entirety and by inserting the following in lieu
thereof:
"(ii) Asset Sales Proceeds. Except for Net
Proceeds arising from the sale of the properties
described on Schedule 5 hereto or of certain
property located in Rolla, Missouri (which
property shall be deemed to be incorporated into
such Schedule 5 by this reference, and as to which
the Borrower expects a sales price of
approximately $2,250,000), one hundred percent
(100%) of Net Proceeds from the sale, transfer or
other disposition of assets by the Borrower or any
of its Subsidiaries (other than in the ordinary
course of business) in excess of $1,000,000 in the
aggregate during the term of this Agreement shall
be used by the Borrower to prepay the Term Loan
immediately upon the Borrower's or any of its
Subsidiaries' receipt thereof."
(iii) Section 2.6(a)(iii). Section 2.6(a)(iii)
of the Credit Agreement, Equity Offering Proceeds, is
hereby amended by deleting the existing Section
2.6(a)(iii) in its entirety and by inserting the
following in lieu thereof:
"(iii) Equity Offering Proceeds. Other than
Net Proceeds of any sale or issuance of capital
stock of the Borrower in respect of the Schwitzer
Warrants, one hundred percent (100%) of Net
Proceeds in an aggregate amount up to $8,000,000,
and twenty percent (20%) of all additional Net
Proceeds from the issuance by the Borrower of any
equity after the Agreement Date shall be used by
the Borrower to prepay the Term Loan immediately
upon the Borrower's receipt thereof."
(g) Section 2.7. Section 2.7 of the Credit Agreement,
Repayment, is hereby amended by deleting Section 2.7(a),
Term Loan, thereof in its entirety and by inserting the
following in lieu thereof:
"(a) Term Loan. The principal balance of the Term
Loan shall be amortized in consecutive semi-annual
installments in the amounts and on the dates set forth
below:
Dates Amount
------- -------
June 30, 1994 $2,000,000
December 31, 1994 $2,000,000
June 30, 1995 $2,500,000
December 31, 1995 $3,500,000
June 30, 1996 $4,250,000
December 31, 1996 $4,250,000
June 30, 1997 $4,500,000
December 31, 1997 $4,500,000
June 30, 1998 $4,750,000
December 31, 1998 $4,750,000
June 30, 1999 $5,000,000
December 31, 1999 $5,000,000
A final payment of all principal amounts outstanding in
respect of the Term Loan shall be due and payable on
the Term Loan Maturity Date."
(h) Section 2.13. Section 2.13 of the Credit
Agreement, Letters of Credit, is hereby amended by deleting
the first sentence of subsection (a) thereof in its entirety
and by inserting the following in lieu thereof:
"(a) Subject to the terms and conditions hereof,
NationsBank hereby agrees to issue Letters of Credit in
an aggregate face amount not to exceed the lesser of
$6,000,000 or the Available Revolving Loan Commitment
at any time outstanding, during the period from and
including the Agreement Date to the Revolving Loan
Maturity Date; provided, however, that NationsBank
shall have no obligation to issue any Letter of Credit
if any Default then exists or would be caused thereby."
3. Amendments to Article 5. Article 5 of the Credit
Agreement, General Covenants, is hereby amended as follows:
(a) Section 5.12. Section 5.12 of the Credit
Agreement, Additional Collateral, is hereby amended by
deleting Section 5.12 in its entirety and by inserting the
following in lieu thereof:
"Section 5.12 Additional Collateral.
(a) At the time of (i) any acquisition of any new
Subsidiary of the Borrower, whether by stock purchase,
merger or otherwise, for total consideration (including
any assumption of Indebtedness for Money Borrowed) in
an aggregate amount of more than $30,000,000, or (ii)
any acquisition, in any single transaction or series of
related transactions, by the Borrower or any of its
Subsidiaries of assets for total consideration
(including any assumption of Indebtedness for Money
Borrowed) of more than $30,000,000, the Borrower shall:
(A) cause any such Subsidiary to provide to the
Administrative Agent a loan certificate substantially
in the form of Exhibit L hereto, together with
appropriate attachments thereto, a Subsidiary Guaranty,
a Security Agreement and, to the extent that such
Subsidiary has any Subsidiaries, a Pledge Agreement,
together with appropriate Uniform Commercial Code
Financing Statements, stock certificates and stock
powers relating thereto, all of which shall be in form
and substance reasonably satisfactory to the
Administrative Agent; (B) cause the capital stock of
any such Subsidiary to be pledged to the Administrative
Agent pursuant to a Pledge Agreement and deliver to the
Administrative Agent appropriate Uniform Commercial
Code Financing Statements, stock certificates and stock
powers relating thereto, all of which shall be in form
and substance reasonably satisfactory to the
Administrative Agent; (C) cause to be filed any
additional Uniform Commercial Code Financing Statements
or amendments thereto in all appropriate jurisdictions
in respect of any acquisition of assets, all of which
shall be in form and substance reasonably satisfactory
to the Administrative Agent; (D) cause to be executed,
delivered and filed of record appropriate deeds of
trust, mortgages or deeds to secure debt with respect
to any real property owned by the Borrower or any of
its Subsidiaries having a fair market value of
$3,000,000 or more, and cause to be delivered to the
Administrative Agent appropriate surveys, title
insurance, Phase I environmental audit reports, and
related documentation in connection therewith, all of
which shall be in form and substance reasonably
satisfactory to the Administrative Agent; and (E)
provide all other documentation, including, without
limitation, opinions of counsel to the Borrower and its
Subsidiaries and to the seller of any such assets or
Subsidiaries, which, in the reasonable opinion of the
Administrative Agent, is appropriate with respect to
the particular transaction.
(b) At the time of any other acquisition or
formation of any new Subsidiary of the Borrower (other
than a Shell Corporation), whether by stock purchase,
merger or otherwise, or at any time when a Subsidiary
which formerly constituted a Shell Corporation no
longer falls within the definition of Shell
Corporation, the Borrower shall cause the capital stock
of any such Subsidiary to be pledged to the
Administrative Agent pursuant to a Pledge Agreement and
deliver to the Administrative Agent appropriate Uniform
Commercial Code Financing Statements, stock
certificates and stock powers relating thereto, all of
which shall be in form and substance reasonably
satisfactory to the Administrative Agent."
(b) Section 5.13. Section 5.13 of the Credit
Agreement, Interest Rate Hedging, is hereby amended by
deleting Section 5.13 in its entirety and by inserting the
following in lieu thereof:
"Section 5.13 [RESERVED]."
4. Amendments to Article 7. Article 7 of the Credit
Agreement, Negative Covenants, is hereby amended as follows:
(a) Section 7.1. Section 7.1 of the Credit Agreement,
Indebtedness, is hereby amended by (i) deleting the "and" at
the end of subsection (f) thereof, (ii) deleting the period
at the end of subsection (g) thereof and inserting a semi-
colon and the word "and" in lieu thereof, and (iii)
inserting the following new subsections (h), (i), (j), (k)
and (l) after existing clause (g) thereof:
"(h) Indebtedness of Schwitzer (Europe) Limited or
Schwitzer (Europe) Holdings Limited in an aggregate
outstanding amount not to exceed $5,000,000 at any
time;
(i) Indebtedness of Lacom Schwitzer Equipamentos,
Ltda. in an aggregate outstanding amount not to exceed
$3,000,000 at any time;
(j) Indebtedness of Schwitzer Pension Trustee
Limited arising in the ordinary course of business to
meet its pension obligations;
(k) Intercompany Indebtedness of the Borrower and
its Subsidiaries incurred in accordance with Section
7.8 and the other provisions of this Agreement; and
(l) Other Indebtedness which does not exceed
$15,000,000 in the aggregate at any one time
outstanding."
(b) Section 7.2. Section 7.2 of the Credit Agreement,
Liquidation; Change in Ownership, Name, or Fiscal Year;
Disposition or Acquisition of Assets, is hereby amended by
deleting subsection (c) thereof in its entirety and by
inserting the following in lieu thereof:
"(c) Merge or consolidate with any other Person
unless (i) in the case of a merger or consolidation of
the Borrower, the Borrower merges with a Subsidiary and
the Borrower is the surviving corporation, or in the
case of a merger or consolidation of any Subsidiary of
the Borrower, the surviving company is a majority-owned
Subsidiary of the Borrower and is controlled by the
Borrower, and (ii) no Default then exists or would be
caused thereby, and provided that any such merger or
consolidation does not in any way impair, void or cause
to be negated or released, in whole or in part, any
Liens the Administrative Agent or any of the Lenders
may have on the assets or capital stock of the Borrower
or any of its Subsidiaries or any Guaranty in favor of
the Administrative Agent or any of the Lenders;"
(c) Section 7.2. Section 7.2 of the Credit Agreement,
Liquidation; Change in Ownership, Name, or Fiscal Year;
Disposition or Acquisition of Assets, is hereby amended by
deleting subsection (i) thereof in its entirety and by
inserting the following in lieu thereof:
"(i) Acquire (A) all or any substantial part of
the assets, property or business of, or (B) any assets
that constitute a division or operating unit of the
business of, any other Person, whether by merger or
otherwise; provided, however, that so long as no
Default then exists or would be caused thereby, and so
long as the consummation thereof cannot reasonably be
expected to have a Materially Adverse Effect or to
expose the Borrower, any of its Subsidiaries, the
Administrative Agent and the Lenders, or any of them,
to materially increased risks as a result thereof, the
Borrower may, or may permit any of its Subsidiaries to,
make acquisitions of assets of other Persons or the
issued and outstanding capital stock of other Persons
for total consideration (including any assumption of
Indebtedness for Money Borrowed) in an aggregate amount
during the term of this Agreement not to exceed the
lesser of (i) the Net Worth of the Borrower and its
Subsidiaries on a consolidated basis as of the date of
the proposed acquisition (before giving effect to the
proposed acquisition but after giving effect to any
additional issuance of equity in connection therewith),
or (ii) $30,000,000; provided that the total
consideration (including any assumption of Indebtedness
for Money Borrowed) given by the Borrower or any of its
Subsidiaries in connection with any acquisition of
assets or capital stock of any Affiliate of the
Borrower (other than of a Subsidiary of the Borrower)
shall not exceed $15,000,000 during the term of this
Agreement; and provided, further, that, so long as
(1) in the case of the acquisition of the capital stock
of another Person, such Person shall thereupon become a
direct or indirect Subsidiary of the Borrower and
become consolidated with the Borrower in accordance
with GAAP, (2) after giving effect to such acquisition,
the Borrower and its Subsidiaries on a consolidated
basis shall have cash, marketable securities or
borrowing availability under the Revolving Loan
Commitment, or any combination thereof, in excess of
$5,000,000, and (3) the Borrower complies with
Section 5.12 hereof and delivers to the Administrative
Agent and the Lenders, the following, prior to or
contemporaneously with the consummation of such
acquisition: (a) a true, complete and correct copy of
the acquisition agreement and all exhibits and
schedules thereto relating to the assets or company
being acquired, (b) historical financial statements for
the Person or properties being acquired, (c) pro forma
financial statements of the Borrower and its
Subsidiaries after giving effect to the proposed
acquisition, and (d) calculations demonstrating the
Borrower's compliance with Sections 7.15 through 7.19
hereof, both before and after giving effect to the
subject acquisition. Notwithstanding the foregoing,
not less than thirty (30) days prior to any merger or
consolidation of the Borrower or any of its
Subsidiaries or any acquisition contemplated by
Section 7.2(i) above, the Borrower shall give the
Administrative Agent and the Lenders notice of such
proposed merger, consolidation or acquisition, and,
within thirty (30) days after the receipt by the
Administrative Agent and the Lenders of such notice and
any information relating to the accounts receivable,
inventory and other assets of the Person or Persons to
be merged, consolidated or acquired (all as may be
reasonably requested by the Administrative Agent), the
Administrative Agent shall advise the Borrower of the
Borrowing Base values and special eligibility
requirements, if any, to be applied to the survivor or
survivors of such merger or consolidation, the Person
making such acquisition following any such asset
acquisition, or the Person being acquired in connection
with any such stock acquisition, as applicable. Such
determination of Borrowing Base values and special
eligibility requirements, if any, shall be made by the
Majority Lenders in the exercise of their reasonable
business judgment. This Agreement shall be amended as
of the effective date of such merger, consolidation or
acquisition pursuant to an amendment mutually
satisfactory to the Borrower and the Majority Lenders
to reflect such adjustments to the Borrowing Base."
(d) Section 7.6. Section 7.6 of the Credit Agreement,
Guaranties, is hereby amended by deleting Section 7.6 in its
entirety and by inserting the following in lieu thereof:
"Section 7.6 Guaranties. Neither the Borrower
nor any of its Subsidiaries will at any time enter into
or guarantee, or assume, be obligated with respect to,
or permit to be outstanding, any Guaranty, other than
(a) Guaranties by endorsement of negotiable instruments
for collection in the ordinary course of business,
(b) obligations under agreements entered into in
connection with the acquisition of services, supplies,
and equipment in the ordinary course of business of
such Person, (c) obligations of Coleman or any of its
Subsidiaries in respect of that certain guarantee
issued by Hitachi Cable, Limited described in the notes
to the consolidated audited financial statements of
Coleman and its Subsidiaries for the fiscal year ended
June 30, 1993 delivered to the Administrative Agent and
the Lenders, which obligations shall not exceed at any
time $2,000,000 in the aggregate, (d) obligations of
Schwitzer in respect of that certain comfort letter
dated as of March 1, 1990 (the "Comfort Letter"),
addressed to National Westminster Bank, PLC (or its
successor), which obligations shall not exceed the
lesser of (i) the aggregate amount of obligations of
Schwitzer (Europe) Limited outstanding from time to
time under that certain credit facility referred to in
the Comfort Letter, or (ii) $5,000,000, and (e) the
Guaranties described on Schedule 9 hereto or any
similar Guaranties entered into in the ordinary course
of business of any such Person, which Guaranties relate
to Indebtedness not to exceed $3,000,000 in the
aggregate at any time outstanding."
(e) Section 7.8. Section 7.8 of the Credit Agreement,
Investments, is hereby amended by (i) deleting the word
"and" at the end of subsection (d) thereof, (ii) deleting
the period at the end of subsection (e) thereof and
inserting a comma and the word "and" in lieu thereof, and
(iii) inserting the following new subsection (f) after
existing subsection (e) thereof:
"(f) the Borrower or any of its Subsidiaries, so
long as Investments in Schwitzer (Europe) Limited,
Schwitzer (Europe) Holdings Limited or Lacom Schwitzer
Equipamentos, Ltda. do not exceed $5,000,000 in the
aggregate at any time outstanding during the term of
this Agreement."
(f) Section 7.9. Section 7.9 of the Credit Agreement,
Leases, is hereby amended by deleting Section 7.9 in its
entirety and by inserting the following in lieu thereof:
"Section 7.9 Leases. Neither the Borrower nor
any of its Subsidiaries will create, incur, assume, or
suffer to exist, any obligation for the payment of rent
or hire for property or assets of any kind whatsoever,
whether real or personal, including, without
limitation, Capitalized Lease Obligations, under leases
or lease agreements which would cause the aggregate
amount of all payments made by such Persons pursuant to
such leases or lease agreements to exceed $5,000,000
during any fiscal year during the term of this
Agreement."
(g) Section 7.10. Section 7.10 of the Credit
Agreement, Capital Expenditures, is hereby amended by
deleting Section 7.10 in its entirety and by inserting the
following in lieu thereof:
"Section 7.10 [RESERVED]."
(h) Section 7.15. Section 7.15 of the Credit
Agreement, Fixed Charge Coverage Ratio, is hereby amended by
deleting Section 7.15 in its entirety and by inserting the
following in lieu thereof:
"Section 7.15 Fixed Charge Coverage Ratio. The
Borrower shall not permit the ratio of (a) Cash Flow
for the four (4) most recently completed calendar
quarters to (b) Fixed Charges for such period, to be
less than the following as of the end of each calendar
quarter during the periods set forth below:
Minimum
Period Ratio
-------- ---------
Calendar Year 1994 1.00 to 1
Quarters Ending
March 31, 1995,
June 30, 1995 and
September 30, 1995 1.00 to 1
Quarter Ending
December 31, 1995 1.20 to 1
Quarters Ending
March 31, 1996 and
June 30, 1996 1.25 to 1
Quarters Ending
September 30, 1996 and
December 31, 1996 1.30 to 1
Calendar Year 1997 1.45 to 1
Calendar Year 1998 1.60 to 1
At all times thereafter 1.75 to 1"
(i) Section 7.17. Section 7.17 of the Credit
Agreement, Indebtedness to Total Capital Ratio, is hereby
amended by deleting the table appearing therein in its
entirety and by inserting the following in lieu thereof:
"Maximum
Period Ratio
------ --------
From the Agreement Date through December 31, 1994 70%
From January 1, 1995 through December 31, 1995 57%
From January 1, 1996 through December 31, 1996 57%
From January 1, 1997 through December 31, 1997 55%
At all times thereafter 50%"
(j) Section 7.18. Section 7.18 of the Credit
Agreement, Minimum Net Worth, is hereby amended by deleting
the table appearing therein in its entirety and by inserting
the following in lieu thereof:
"Minimum
Period Amount
------ --------
From the Agreement Date through December 31, 1994 $43 million
From January 1, 1995 through December 31, 1995 $65 million
From January 1, 1996 through December 31, 1996 $72 million
From January 1, 1997 through December 31, 1997 $80 million
From January 1, 1998 through December 31, 1998 $87 million
At all times thereafter $100 million"
5. Amendment to Schedules. Schedules 1, 4 and 6 to the
Credit Agreement are hereby amended by deleting such Schedules in
their entireties and by substituting the revised Schedules 1, 4
and 6 attached hereto in lieu thereof. Schedules 8, 10, 11, 12
and 15 to the Credit Agreement are hereby amended by adding to
such Schedules the information regarding Schwitzer and its
Subsidiaries provided on Schedules 8S, 10S, 11S, 12S and 15S
attached hereto.
6. No Other Amendment or Waiver. Except for the
amendments and waivers set forth herein, the text of the Credit
Agreement shall remain unchanged and in full force and effect.
The amendments and waivers agreed to herein shall not constitute
a modification of the Credit Agreement or a course of dealing
with the Administrative Agent, the Managing Agents and the
Lenders, or any of them, at variance with the Credit Agreement
such as to require further notice by the Administrative Agent,
the Managing Agents, the Lenders, the Majority Lenders, or any of
them, to require strict compliance with the terms of the Credit
Agreement, as amended by this Amendment, in the future.
7. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Administrative Agent, the
Managing Agents and the Lenders as follows:
(a) Each representation and warranty set forth in Article 4
of the Credit Agreement is hereby restated and affirmed as true
and correct in all material respects as of the date hereof,
except to the extent the Borrower has previously updated the
Lenders with respect thereto;
(b) The Borrower has the corporate power and authority (i)
to enter into this Amendment and to execute and deliver the
Amended and Restated Revolving Loan Notes, the Amended and
Restated Term Loan Notes and the Amended and Restated Swing Line
Note referred to herein (collectively, the "New Notes"), and (ii)
to do all acts and things as are required or contemplated
hereunder to be done, observed and performed by it;
(c) This Amendment and the New Notes have been duly
authorized, validly executed and delivered by one or more
Authorized Signatories of the Borrower, and constitute the legal,
valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with their respective terms; and
(d) The execution and delivery of this Amendment and the
New Notes and the performance by the Borrower under the Credit
Agreement, as amended hereby, do not and will not require the
consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower which
has not already been obtained, nor be in contravention of or in
conflict with the Articles of Incorporation or By-Laws of the
Borrower, or the provision of any statute, judgment, order,
indenture, instrument, agreement, or undertaking, to which the
Borrower is party or by which the Borrower's assets or properties
are or may become bound.
8. Conditions Precedent to Effectiveness of Amendment.
The effectiveness of this Amendment is subject to (i) the truth
and accuracy of the representations and warranties contained in
Section 7 hereof; (ii) the execution and delivery by the Borrower
of Amended and Restated Revolving Loan Notes and Amended and
Restated Term Loan Notes, one such Amended and Restated Revolving
Loan Note and one such Amended and Restated Term Loan Note
payable to each Lender; (iii) the execution and delivery by the
Borrower of an Amended and Restated Swing Line Note, payable to
NationsBank; (iv) the execution and delivery of an opinion of
Rudnick & Wolfe, special Illinois counsel to the Borrower and its
Subsidiaries, in the form of Exhibit E attached hereto; (v) the
execution and delivery by the Borrower of Agreements Regarding
Amendment Fees, one such Agreement addressed to each Lender; (vi)
the execution and delivery by the Borrower of a revised Schedule
1 to the Stock Pledge Agreement dated as of December 15, 1993
between the Borrower and the Administrative Agent, evidencing the
pledge to the Administrative Agent and the Lenders of the capital
stock of Schwitzer, together with stock certificates and stock
powers relating thereto, and the execution and delivery by the
Borrower of an officer's certificate with respect to such
Schedule 1; and (vii) receipt of any other documents that the
Administrative Agent, the Managing Agents, the Lenders, or any of
them, may reasonably request, certified by an officer of the
Borrower if so requested.
9. Covenants. The Borrower agrees, in connection with the
merger of Spinner Acquisition Corp., a Delaware corporation and a
wholly-owned Subsidiary of the Borrower, with and into Schwitzer,
Inc., a Delaware corporation (the "Merger"), to (i) prepay the
Schwitzer Domestic Indebtedness (as defined in this Amendment),
(ii) provide the Administrative Agent and the Lenders with the
collateral documents listed on Schedule 1 to this Amendment on or
before July 31, 1995 and the collateral documents listed on
Schedule 2 to this Amendment on or before August 31, 1995, and
(iii) provide the Administrative Agent and the Lenders with an
opinion of Rudnick & Wolfe, special Illinois counsel to the
Borrower and its Subsidiaries with respect to such collateral
documents on or before August 31, 1995, all of which shall be in
form and substance reasonably satisfactory to the Administrative
Agent.
10. Waivers. In conjunction with the Merger and subject to
the Borrower's compliance with Section 9 above, to the extent
that such items were not delivered to the Administrative Agent
and the Lenders in accordance with the terms and provisions of
the Credit Agreement and the Waiver Letter referred to below, the
Administrative Agent, the Managing Agents and the Lenders hereby
waive the requirements contained in: (i) Section 5.12 of the
Credit Agreement (as in effect immediately prior to giving effect
to this Amendment); (ii) Section 7.2(i) of the Credit Agreement
(as in effect immediately prior to giving effect to this
Amendment) with respect to the delivery to the Administrative
Agent and the Lenders of the items described in clauses (b)(i),
(ii), (iv), (vi), (vii), (viii), (ix), (x), and (xi) thereof; and
(iii) Section 4(b) of that certain Waiver Letter dated as of May
31, 1995, by and among the Borrower, the Administrative Agent and
the Lenders.
11. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one
and the same agreement.
12. Law of Contract. This Amendment shall be deemed to be
made pursuant to the laws of the State of Georgia with respect to
agreements made and to be performed wholly in the State of
Georgia and shall be construed, interpreted, performed and
enforced in accordance therewith.
13. Loan Document. This Amendment shall constitute a Loan
Document.
14. Effective Date. Upon satisfaction of the conditions
precedent referred to in Section 8 above, the amendments
contained herein, solely as related to the calculation and
application of the Applicable Margin to the Loans outstanding
under the Credit Agreement and the fees payable thereunder, shall
be effective as of June 1, 1995. All other amendments and
waivers contained herein shall be effective as of June 29, 1995.
IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to
execute, deliver and seal this Amendment as of the day and year
first above written, to be effective as set forth in Section 13
hereof.
BORROWER: KUHLMAN CORPORATION
By: /s/ Vernon J. Nagel
-------------------------------
Its: Executive Vice President
-------------------------
[CORPORATE SEAL] Attest: /s/ Richard A. Walker
---------------------------
Its: Secretary
-------------------------
ADMINISTRATIVE AGENT: NATIONSBANK OF GEORGIA, N.A.
By: /s/ Jan J. Serafen
-------------------------------
Its: Senior Vice President
-------------------------
LENDERS: NATIONSBANK OF GEORGIA, N.A.
By: /s/ Jan J. Serafen
-------------------------------
Its: Senior Vice President
-------------------------
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Bruce S. Borden
-------------------------------
Its: Vice President
-------------------------
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Rod Guinn
-------------------------------
Its: Director
-------------------------
NBD BANK
By: /s/ John C. Otteson
-------------------------------
Its: Vice President
-------------------------
HARRIS TRUST AND SAVINGS BANK
By: /s/ Susan M. Kaminski
-------------------------------
Its: Vice President
-------------------------
J. P. MORGAN DELAWARE
By: /s/ Richard A. Burke
-------------------------------
Its: Associate
-------------------------
TRUST COMPANY OF GEORGIA BANK OF
SAVANNAH, N.A.
By: /s/ William B. Haile
-------------------------------
Its: Executive Vice President
-------------------------
EXHIBITS TO FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit A - Form of Request for Advance or Letter of Credit
Exhibit B - Form of Revolving Loan Note
Exhibit C - Form of Swing Line Note
Exhibit D - Form of Term Loan Note
Exhibit E - Form of Opinion of Rudnick & Wolfe
SCHEDULES TO FOURTH AMENDMENT TO CREDIT AGREEMENT
Schedule 1 - Collateral Documents to be provided by July 31,
1995
Schedule 2 - Collateral Documents to be provided by August 31,
1995
REVISED SCHEDULES TO CREDIT AGREEMENT
Schedule 1 - Inactive Subsidiaries
Schedule 4 - Multi-Employer Plans
Schedule 6 - Subsidiaries and Capital Stock
Schedule 8S - Collective Bargaining Agreements
Schedule 10S - Litigation
Schedule 11S - Patents and Trademarks
Schedule 12S - Names
Schedule 15S - Indebtedness to be Prepaid