1 Exhibit 10.1
FIRST AMENDMENT TO LOAN AGREEMENT
First Amendment to Loan Agreement, dated the 21st day of April, 2004, by and
among Matthews International Corporation, a Pennsylvania corporation (the
"Borrower"), the Banks (as defined in the Loan Agreement (as hereinafter
defined)), Citizens Bank of Pennsylvania, a Pennsylvania banking institution,
in its capacity as lead arranger and administrative agent for the Banks (in
such capacity, the "Agent"), PNC Bank, National Association, a national
banking association, in its capacity as lead arranger and syndication agent
for the Banks (in such capacity, the "Syndication Agent") and National City
Bank of Pennsylvania, in its capacity as documentation agent for the Banks
(in such capacity, the "Documentation Agent") (the "First Amendment").
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Agent and the Documentation Agent
entered into that certain Loan Agreement, dated December 3, 2001, pursuant to
which, among other things, the Banks agreed to extend a revolving credit
facility to the Borrower in an aggregate principal amount not to exceed One
Hundred Twenty-Five Million and 00/100 Dollars ($125,000,000.00) (the "Loan
Agreement"); and
WHEREAS, the Borrower desires to amend certain provisions of the Loan
Agreement and the Banks and the Agent desire to permit such amendments
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
All capitalized terms used herein which are defined in the Loan Agreement
shall have the same meaning herein as in the Loan Agreement unless the
context clearly indicates otherwise.
2. The Preamble of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:
Agreement, dated the 3rd day of December, 2001, by and among Matthews
International Corporation, a Pennsylvania corporation (the "Borrower"), the
Banks (as hereinafter defined), Citizens Bank of Pennsylvania, a Pennsylvania
banking institution, in its capacity as lead arranger and administrative
agent for the Banks (in such capacity, the "Agent"), PNC Bank, National
Association, a national banking association, in its capacity as lead arranger
and syndication agent for the Banks (in such capacity, the "Syndication
Agent") and National City Bank of Pennsylvania, in its capacity as
documentation agent for the Banks (in such capacity, the "Documentation
Agent").
Section 1.01 of the Loan Agreement is hereby amended by inserting the
following definitions:
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"Anti-Terrorism Laws" shall mean any laws relating to terrorism or money
laundering, including Executive Order No. 13224, the USA Patriot Act, the
laws comprising or implementing the Bank Secrecy Act, and the laws
administered by the United States Treasury Department's Office of Foreign
Asset Control (as any of the foregoing laws may from time to time be amended,
renewed, extended, or replaced).
"Bank-Provided Hedge" shall mean a Hedging Agreement which is provided by any
Bank and with respect to which the Agent confirms meets the following
requirements: such Hedging Agreement (i) is documented in a standard
International Swap Dealer Association Agreement, (ii) provides for the method
of calculating the reimbursable amount of the provider's credit exposure in a
reasonable and customary manner, and (iii) is entered into for hedging
(rather than speculative) purposes. The liabilities of the Loan Parties to
the provider of any Bank-Provided Hedge shall be "Indebtedness" hereunder and
guaranteed Indebtedness under the Guaranty Agreements.
"Blocked Person" shall have the meaning assigned to such term in Section
3.24(b) hereof.
"Conversion Option" shall mean that as set forth in Section 2.02(a) hereof.
"Executive Order No. 13224" shall mean the Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
"Hedging Agreements" shall mean foreign exchange agreements, currency swap
agreements, interest rate exchange, swap, cap, collar, adjustable strike cap,
adjustable strike corridor agreements or any other similar hedging agreements
or arrangements entered into by the Loan Parties in the ordinary course of
business and not for speculative purposes.
"Hedging Obligations" shall mean all liabilities and obligations of the Loan
Parties under Hedging Agreements.
"Invested Funds" shall mean the cash and Cash Equivalents of the Borrower
invested in accounts of the Borrower at the Banks; provided, however, that
the Borrower shall invest such cash and Cash Equivalents with each Bank in
accordance with its Commitment Percentage.
"National City" shall mean National City Bank of Pennsylvania.
"Permitted Amount" shall mean Twenty Five Million and 00/100 Dollars
($25,000,000.00).
"Syndication Agent" shall mean PNC and its successors and assigns.
"Term Amount" shall mean that as set forth in Section 2.02(a).
"Term Loan" and "Term Loans" shall mean that as set forth in Section 2.02(a).
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"Term Loan Notice" shall mean that as set forth in Section 2.02(a).
"Term Note" or "Term Notes" shall mean, singularly or collectively, as the
context may require, the Term Note or Term Notes of the Borrower in the Form
of Exhibit "B" attached hereto and made a part hereof, as amended, modified
or supplemented from time to time, together with all extensions, renewals,
refinancing or refunding in whole or in part.
"USA Patriot Act" shall mean the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, Public Law 107-56, as the same has been, or shall hereafter be,
renewed, extended, amended or replaced.
Section 1.01 of the Loan Agreement is hereby amended by deleting the
following definitions in their entirety and in their stead inserting the
following:
"Applicable Rate" shall mean, as of the date of determination, the Prime Rate
plus the Applicable Prime Margin or the Libor Rate plus the Applicable Libor
Margin.
"Documentation Agent" shall mean National City and its successors and
assigns.
"Expiry Date" shall mean April 30, 2009.
"Guarantor" or "Guarantors" shall mean, singularly or collectively, as the
context may require, MIAC, York Group and any other person that executes and
delivers a Guaranty Agreement to the Agent for the ratable benefit of the
Banks on or after April 21, 2004.
"Guaranty Agreement" or "Guaranty Agreements" shall mean, singularly or
collectively, as the context may require, the MIAC Guaranty, the York Group
Guaranty, and any other Guaranty and Suretyship Agreement executed and
delivered to the Agent for the ratable benefit of the Banks on or after the
date hereof substantially in the form of Exhibit "E" attached hereto and made
a part hereof.
"Libor Rate Loan" shall mean any Loan that bears interest with reference to
the Libor Rate.
"Loan" or "Loans" shall mean, singularly or collectively, as the context may
require, the Revolving Credit Loans, the Term Loan(s) and any other credit to
the Borrower extended by any Bank in accordance with Article II hereof as
evidenced by the Notes, as the case may be.
"Note" or "Notes" shall mean, singularly or collectively as the context may
require, the Revolving Credit Notes, the Term Notes and any other note of the
Borrower executed and delivered pursuant to this Agreement, as any such note
may be amended, modified or supplemented from time to time, together with all
extensions, renewals, refinancings or refundings in whole or in part.
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"Office", when used in connection with (i) Citizens or the Agent, shall mean
its designated office located at 525 William Penn Place, Pittsburgh,
Pennsylvania 15219 or such other office of Citizens or the Agent as Citizens
or the Agent may designate in writing from time to time, or (ii) any other
Bank, shall mean its designated office identified on Schedule 1 attached
hereto and made a part hereof with respect to such Bank or such other office
of such Bank as such Bank may designate in writing from time to time.
"Prime Rate Loan" shall mean any Loan that bears interest with reference to
the Prime Rate.
Section 1.01 of the Loan Agreement is hereby amended by deleting the
following definitions:
"Capital Expenditure"
"Fixed Charge Coverage Ratio"
"Fixed Charges"
"IEEC"
"IEEC Guaranty"
"Net Worth"
"Refunded Swing Line Loans"
"Swing Line Lender"
"Swing Line Loan Facility"
"Swing Line Loans"
"Swing Line Note"
"Swing Line Rate"
"YBTC"
"YBTC Guaranty
Paragraph (v) of the definition of "Indebtedness" contained in Section 1.01
of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
all Hedging Obligations and all obligations (contingent or otherwise)
under any letter of credit, banker's acceptance, Guaranty or
indemnification agreement;
Section (i) of the definition of "Interest Period" contained in Section 1.01
of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
(i)the Interest Period for any Libor Rate Loan shall be one (1), two (2),
three (3), four (4) six (6), nine (9) or twelve (12) Months or such other
period as may be agreed upon by the Borrower and the Banks, and the Borrower
shall not be permitted to select Interest Periods to be in effect at any one
time which have expiration dates occurring on more than four (4) different
dates;
The second to the last sentence of Section 2.01(c)(ii) of the Loan Agreement
is hereby deleted in its entirety.
Section 2.02 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
Term Loan(s).
Conversion Option. Upon the written request (the "Term Loan Notice") by the
Borrower received by the Agent at any time or times prior to April, 29, 2008,
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and so long as no Potential Default or Event of Default has occurred, the
Borrower may convert (the "Conversion Option") all or any portion of the
outstanding principal balance of the Revolving Credit Loans (the "Term
Amount") into a term loan or term loans (each such term loan is a "Term Loan"
and collectively, the "Term Loans"). Each such conversion shall be effective
on the first (1st) day of the first (1st) full calendar month following the
Agent's receipt of such written request so long as such written request was
received at least five (5) Business Days prior to the effective date of such
conversion and the Borrower executes and delivers to the Agent a Term Note
for each Bank in the amount of each Bank's Pro Rata Share. Upon each
exercise by the Borrower of the Conversion Option, the Revolving Credit
Facility Commitment shall be reduced by such Term Amount; provided, however,
that upon the repayment of any principal amount of any Term Loan, the
Revolving Credit Facility Commitment shall be increased by the principal
amount of such repayment. Notwithstanding anything contained herein to the
contrary, there shall not be more than four (4) Term Loans outstanding at any
one time.
Nature of Term Loan(s). Upon repayment of any amount of principal or
interest on any Term Loan by the Borrower, the Borrower may not reborrow
under this Section 2.02.
Term Notes. The joint and several obligations of the Borrower to repay the
unpaid principal amount of each Term Loan made to the Borrower by each Bank
and to pay interest therein shall be evidenced in part by the Term Notes of
the Borrower. Each Term Note shall be payable to the order of a Bank in a
principal amount equal to such Bank's Pro Rata Share with respect to such
Term Loan. The executed Term Notes will be delivered by the Borrower to the
Banks on the first day of each Term Loan.
Term Loan Interest Rate Options.
After the Borrower's exercise of a Conversion Option, the Borrower may,
subject to the terms and conditions of this Agreement, convert all or a
portion of such Term Loan which is a Libor Rate Loan(s) into a Prime Rate
Loan as set forth in Section 2.02(d)(ii). In addition, the Borrower may,
subject to the terms and conditions of this Agreement, convert all or a
portion of such Term Loan that is a Prime Rate Loan into a Libor Rate Loan in
accordance with this Section 2.02(d)(i). Any portion of a Term Loan that is
converted from a Prime Rate Loan into a Libor Rate Loan shall be converted,
and shall begin to accrue interest with reference to the Libor Rate, on such
Business Day, in such amount (greater than or equal to One Million and 00/100
Dollars ($1,000,000.00); provided , however, that any amount in excess of One
Million and 00/100 Dollars ($1,000,000.00) may only be in increments of Five
Hundred Thousand and 00/100 Dollars ($500,000.00)), and with such an Interest
Period as an Authorized Representative of the Borrower shall request by
written or telephonic notice (confirmed promptly, but in no event later than
one (1) Business Day thereafter, in writing) received by the Agent no later
than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the third (3rd) Business
Day prior to the requested date of conversion into such Libor Rate Loan. In
addition, in the event that the Borrower desires to renew the portion of a
Term Loan that is a Libor Rate Loan for an additional Interest Period, an
Authorized Representative of the Borrower shall provide the Agent with
written or telephonic notice (confirmed promptly, but in no event later than
one (1) Business Day thereafter, in writing) thereof on or before 10:00 a.m.
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(Pittsburgh, Pennsylvania time) on the third (3rd) Business Day prior to the
expiration of the applicable Interest Period. In the event that the Borrower
fails to provide the Agent with the required written or telephonic notice
(confirmed promptly, but in no event later than one (1) Business Day
thereafter, in writing) prior to 10:00 a.m. (Pittsburgh, Pennsylvania time)
on the third (3rd) Business Day prior to the expiration of the applicable
Interest Period for a Libor Rate Loan, the Borrower shall be deemed to have
given notice that such portion of such Term Loan shall be converted into a
Prime Rate Loan on the last day of the applicable Interest Period. Each
written notice of any Libor Rate Loan shall be irrevocable and binding on the
Borrower and the Borrower shall indemnify the Agent and the Banks against any
loss or expense incurred by the Banks as a result of any failure by the
Borrower to consummate such transaction calculated as set forth in Section
2.12(c) hereof.
The Borrower shall have the option, subject to the terms and conditions of
this Agreement, to convert a portion of the Term Loan that is a Prime Rate
Loan into a Libor Rate Loan as set forth in Section 2.02(d)(i); provided,
however, that no portion of the outstanding principal amount of any Libor
Rate Loan may be renewed as or converted into a Libor Rate Loan of a
different duration if such Libor Rate Loan relates to any Hedging
Obligations. Any portion of a Term Loan that is converted from a Libor Rate
Loan into a Prime Rate Loan shall be converted, and shall begin to accrue
interest with reference to the Prime Rate, on such Business Day and in such
amount as an Authorized Representative of the Borrower shall request by
written or telephonic notice (confirmed promptly, but in no event later than
one (1) Business Day thereafter, in writing) received by the Agent no later
than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the Business Day of the
requested conversion of such portion of the Term Loan into a Prime Rate Loan.
Upon receipt of a Term Loan Notice or a request to renew or convert an
interest rate option with respect to a Term Loan, the Agent shall promptly
advise each of the Banks of its receipt of the Term Loan Notice or the
request to renew or convert an interest rate option with respect thereto, the
amount of each such Term Loan, the Interest Period thereof, as applicable,
and the Bank's Pro Rata Share of such Term Loan.
Payments of Principal and Maturity. Subject to the terms and conditions of
this Agreement, commencing on the last day of the first (1st) Fiscal Quarter
immediately following the first (1st) day of a Term Loan, and on the last day
of each successive Fiscal Quarter thereafter through and including the Expiry
Date, the Borrower shall make equal quarterly principal payments to the Agent
for the ratable account of the Banks in such amount as the Agent shall advise
the Borrower prior to or on the first (1st) day of a Term Loan (such amount
shall be an amount which will result in a level principal payment necessary
to amortize the principal balance of such Term Loan over a period selected by
the Borrower; provided, however, that such amortization period shall not
exceed five (5) years), plus accrued interest as set forth in Section 2.04
hereof. All remaining unpaid principal, accrued interest and all other sums
and costs incurred by the Agent and the Banks pursuant to this Agreement with
respect to the Term Loan(s) shall be immediately due and payable on the
Expiry Date without notice, presentment or demand of any kind.
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Section 2.03(a) of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:
Interest on the Loans. Subject to the terms and conditions of this
Agreement, the aggregate outstanding principal balance of the Loans shall be,
at the option of the Borrower as selected pursuant to Section 2.01(c) or
2.02(d) hereof, as the case may be, (x) Prime Rate Loans which shall bear
interest for each day at the rates set forth below or (y) Libor Rate Loans
which shall bear interest during each applicable Interest Period at the rates
set forth below:
Subject to the terms and conditions of this Agreement, on the date of this
Amendment and through the day immediately preceding the first (1st) Incentive
Pricing Effective Date, (x) Prime Rate Loans shall bear interest for each day
at a rate per annum equal to the Prime Rate plus the applicable margin
corresponding to Tier I as set forth below and (y) Libor Rate Loans shall
bear interest during each applicable interest period at a rate per annum
equal to the Libor Rate plus the Applicable Libor Margin corresponding to
Tier I set forth below;
Subject to the terms and conditions of this Agreement, during each Fiscal
Quarter, in accordance with Section 5.01(b) hereof, the Borrower shall submit
to the Agent and the Banks quarterly financial statements (the Fiscal Quarter
in which such financial statements are required to be received by the Agent
and the Banks is the "Reporting Quarter") as of the last day of the Fiscal
Quarter immediately preceding such Reporting Quarter (with respect to any
Reporting Quarter, the Fiscal Quarter immediately preceding such Reporting
Quarter is the "Measurement Quarter"). Upon receipt of such quarterly
financial statements by the Agent and the Banks in accordance with Section
5.01(b), the Borrower's Leverage Ratio shall be calculated as of the last day
of the Measurement Quarter ending December 31, 2003 and as of the last day of
each Measurement Quarter thereafter. From the first (1st) day of the first
(1st) full calendar month following the Agent's and the Bank's receipt of such
quarterly financial statements (the "Incentive Pricing Effective Date") until
the next Incentive Pricing Effective Date, (x) Prime Rate Loans shall bear
interest for each day at a rate per annum equal to the Prime Rate plus the
applicable margin determined by reference to the Borrower's Leverage Ratio as
set forth below (the "Applicable Prime Margin") and (y) Libor Rate Loans
shall bear interest during each applicable Interest Period at a rate per
annum equal to the Libor Rate plus the applicable margin determined by
reference to the Borrower's Leverage Ratio as set forth below (the
"Applicable Libor Margin"):
Applicable Applicable
Leverage Applicable Applicable L/C Fee Commitment
Tier Ratio Libor Margin Prime Margin Percentage Fee Percentage
I < 1.00 .50% 0.00% .50% 0.20%
II ?1.00 <1.50 .75% 0.00% .75% 0.225%
III ? 1.50 1.00% 0.25% 1.00% 0.30%
Notwithstanding the above, the Applicable Libor Margin set forth above shall
be reduced (among the Banks in accordance with their Pro Rata Share of the
applicable portion) to .40% with respect to the portion of the Libor Loans
that is less than or equal to two hundred percent (200%) of the amount of the
Borrower's Invested Funds commencing on April 21, 2004, and as of each
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applicable Incentive Pricing Effective Date thereafter; provided, however,
if, prior to the next applicable Incentive Pricing Effective Date, the amount
of the Borrower's Invested Funds is reduced to be less than the amount of
Invested Funds set forth in the Borrower's most recently delivered compliance
certificate, the Applicable Libor Margin shall be readjusted accordingly,
retroactive to the most recent Incentive Pricing Effective Date.
Subject to the terms and conditions of this Agreement, in the event that the
Borrower fails to timely deliver the financial statements required by Section
5.01(b) hereof, the Applicable Margin shall be the amount corresponding to
Tier III until the delivery of such financial statements.
Section 2.03(b) of the Loan Agreement is hereby amended by deleting in their
entirety the references to "Swingline Rate" and "Swingline Loan" contained
therein.
Section 2.04 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
The Borrower shall pay to the Agent for the ratable account of the Banks
interest on the aggregate outstanding balance of the Loans which are Prime
Rate Loans in arrears, on July 31, 2004 and on the last day of each October,
January, April and July thereafter through and including the Expiry Date.
The Borrower shall pay to the Agent for the ratable account of the Banks
interest on the unpaid principal balance of the Loans that are Libor Rate
Loans on the earlier of (i) the last day of the applicable Interest Period
for such Loan or (ii) for such Loans with an applicable Interest Period
exceeding three (3) Months, on each and every three (3) Month anniversary of
each such Loan during the period from the Closing Date to and including the
Expiry Date. After maturity of any part of the Loans (whether upon the
occurrence of an Event of Default, by acceleration or otherwise), interest on
such part of the Loans shall be immediately due and payable without notice,
presentment, or demand of any kind.
The following is hereby inserted as a new Section 3.24 of the Loan Agreement:
Anti-Terrorism Laws.
None of the Loan Parties nor any Affiliate of any Loan Party, is in violation
in any material respect of any Anti-Terrorism Law or engages in or conspires
to engage in any material respect in any transaction that evades or avoids,
or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
None of the Loan Parties, nor any Affiliate of any Loan Party, is any of the
following (each a "Blocked Person"):
a Person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order No. 13224;
a Person owned or controlled by, or acting for or on behalf of, any Person
that is listed in the annex to, or is otherwise subject to the provisions of,
the Executive Order No. 13224;
a Person with which any Bank is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;
a Person that commits, threatens or conspires to commit or supports
"terrorism" as defined in the Executive Order No. 13224;
a Person that is named as a "specially designated national" on the most
current list published by the U.S. Treasury Department Office of Foreign
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Asset Control at its official website or any replacement website or other
replacement official publication of such list, or a Person who is affiliated
or associated with a Person listed above.
No Loan Party (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any Blocked
Person, or (ii) deals in, or otherwise engages in any transaction relating
to, any property or interests in property blocked pursuant to the Executive
Order No. 13224.
The following is hereby inserted as a new Section 5.01(l) of the Loan
Agreement:
Tax Shelter Provisions.
Promptly after the Borrower determines that it intends to treat any of the
Loans, Letters of Credit or related transactions as being a "reportable
transaction" as provided in Section 5.17, the Borrower shall send to the
Agent:
a written notice of such intention; and
a duly completed copy of IRS Form 8886 or any successor form.
Section 5.14 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
[Reserved].
Section 5.15 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
[Reserved].
[Reserved].
Leverage Ratio. As of June 30, 2004, and as of the last day of each Fiscal
Quarter thereafter, for the period equal to the four (4) consecutive Fiscal
Quarters then ending, the Borrower and its Subsidiaries shall maintain a
Leverage Ratio less than or equal to 2.00 to 1.0.
Interest Coverage Ratio. As of June 30, 2004, and as of the last day of each
Fiscal Quarter thereafter, for the period equal to the four (4) consecutive
Fiscal Quarters then ending, the Borrower and its Subsidiaries shall maintain
an Interest Coverage Ratio greater than or equal to 4.00 to 1.0.
The following is hereby inserted as a new Section 5.17 of the Loan Agreement:
Tax Shelter Regulations.
The Borrower does not intend to treat the Loans and/or Letters of Credit and
related transactions as being a "reportable transaction" (within the meaning
of Treasury Regulation Section 1.6011-4). In the event the Borrower
determines to take any action inconsistent with such intention, the Borrower
will promptly (i) notify the Agent thereof, and (ii) deliver to the Agent a
duly completed copy of IRS Form 8886 or any successor form. If the Borrower
so notifies the Agent, the Borrower acknowledges that it may treat its Loans
and/or Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and the Agent, as applicable, will maintain
the lists and other records required by such Treasury Regulation.
The following is hereby inserted as a new Section 5.18 of the Loan Agreement:
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Anti-Terrorism Laws.
The Loan Parties and their respective Affiliates and agents shall not (i)
conduct any business or engage in any transaction or dealing with any Blocked
Person, including making or receiving any contribution of funds, goods or
services to or for the benefit of any Blocked Person, (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224; or (iii) engage
in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in the Executive Order No. 13224, the USA Patriot Act
or any other Anti-Terrorism Law. The Borrower shall deliver to the Agent any
certification or other evidence requested from time to time by the Agent in
its sole discretion, confirming Borrower's compliance with this Section 5.18.
Section 6.01(f) of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:
Purchase Money Security Interests to secure Indebtedness; provided, however,
that such security interests shall be limited solely to the equipment
purchased with the proceeds of such Indebtedness;
Sections 6.01(h) and (i) of the Loan Agreement are hereby deleted in their
entirety and in their stead is inserted the following:
attachment, judgment or other similar Liens arising in connection with a
proceeding before an Official Body and which do not cause an Event of Default
to occur;
Liens of any Subsidiary of a Loan Party that is not itself a Loan Party
securing Indebtedness; and
The following is hereby inserted as new Section 6.01(j) of the Loan
Agreement:
Liens of any Loan Party securing Indebtedness; provided, however, that such
Liens shall be limited to Liens on equipment, fixtures, real property and/or
proceeds thereof; and provided, further, that the aggregate [book] value of
the assets securing such Indebtedness shall not at any time exceed the
Permitted Amount.
Section 6.02 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
[Reserved].
Section 6.03 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
[Reserved].
Section 6.04 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
[Reserved].
Section 6.05 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
[Reserved].
Section 6.07(v) of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:
so long as no Event of Default or Potential Default shall have occurred,
other sales or dispositions of assets in the ordinary course of business the
fair market value of which does not exceed fifteen percent (15%) of the fair
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market value of all of the Loan Parties' assets immediately prior to such
sale or disposition.
Section 6.09 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
Partnerships; Mergers or Consolidation.
No Loan Party nor any Subsidiary of a Loan Party shall form a partnership,
limited liability company or joint venture or merge or consolidate with or
into any other Person, or agree to do any of the foregoing, except that (i) a
Subsidiary which is not a Loan Party may merge or consolidate with or into
another Subsidiary which is not a Loan Party, (ii) a Loan Party may merge or
consolidate with or into another Loan Party provided that if the Borrower is
a party to such merger or consolidation, the Borrower is the surviving entity
and (iii) each Loan Party and its Subsidiary may complete Acquisitions.
Section 8.09 of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
Successor Agent; Documentation or Syndication Agent.
The Agent may resign as administrative agent hereunder by giving not fewer
than thirty (30) days' prior written notice to the Borrower and the Banks.
If the Agent shall resign under this Agreement, then either (a) the Majority
Banks shall appoint from among the Banks a successor administrative agent for
the Banks or (b) if a successor administrative agent shall not be so
appointed and approved within the thirty (30) day period following the
Agent's notice to the Banks of its resignation, then the Agent shall appoint
a successor administrative agent who shall serve as administrative agent
until such time as the Majority Banks appoint a successor administrative
agent pursuant to clause (a). Upon its appointment, such successor
administrative agent shall succeed to the rights, powers and duties as
administrative agent, and the term "Agent" shall mean such successor
effective upon its appointment, and the former administrative agent's rights,
powers and duties as administrative agent shall be terminated without any
other or further act or deed on the part of such former administrative agent
or any of the parties to this Agreement.
The parties hereto acknowledge and agree that no Person shall have, solely by
reason of its designation as a documentation agent or syndication agent, any
power, duty, responsibility or liability whatsoever under this Agreement or
any of the Loan Documents.
The following is hereby inserted as a new Section 9.17 of the Loan Agreement:
Certifications from Bank and Participants.
Tax Withholding.
Any assignee or participant of a Bank that is not incorporated under the Laws
of the United States of America or a state thereof (and, upon the written
request of such Bank, assignee or participant of such Bank, or the Agent)
agrees that it will deliver to the Borrower, such Bank and the Agent three
(3) duly completed appropriate valid Withholding Certificates (as defined
under 1.1441-1(c)(16) of the Income Tax Regulations (the "Regulations"))
certifying its status (i.e. U.S. or foreign person) and, if appropriate,
making a claim of reduced, or exemption from, U.S. withholding tax on the
12
basis of an income tax treaty or an exemption provided by the Code. The term
"Withholding Certificate" means a Form W-9; a Form W-8BEN; a Form W-8ECI; a
Form W-8IMY and the related statements and certifications as required under
1.1441-1(e)(2) and/or (3) of the Regulations; a statement described in
1.871-14(c)(2)(v) of the Regulations; or any other certificates under the
Code or Regulations that certify or establish the status of a payee or
beneficial owner as a U.S. or foreign person. Any assignee or participant
required to deliver to the Borrower, a Bank and the Agent a Withholding
Certificate pursuant to the preceding sentence shall deliver such valid
Withholding Certificate at least five (5) Business Days before the effective
date of such assignment or participation (unless such Bank in its sole
discretion shall permit such assignee or participant to deliver such valid
Withholding Certificate less than five (5) Business Days before such date in
which case it shall be due on the date specified by such Bank). Any assignee
or participant which so delivers a valid Withholding Certificate further
undertakes to deliver to the Borrower, a Bank and the Agent three (3)
additional copies of such Withholding Certificate (or a successor form) on or
before the date that such Withholding Certificate expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent
Withholding Certificate so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the
Borrower, such Bank or the Agent. Notwithstanding the submission of a
Withholding Certificate claiming a reduced rate of or exemption from U.S.
withholding tax, such Bank and/or the Agent shall be entitled to withhold
United States federal income taxes at the full thirty percent (30%)
withholding rate if in its reasonable judgment it is required to do so under
the due diligence requirements imposed upon a withholding agent under
1.1441-7(b) of the Regulations. Further, such Bank and/or the Agent is
indemnified under 1.1461-1(e) of the Regulations against any claims and
demands of any assignee or participant of such Bank for the amount of any tax
it deducts and withholds in accordance with regulations under 1441 of the
Code.]
USA Patriot Act.
Each Bank or assignee or participant of a Bank that is not incorporated under
the Laws of the United States of America or a state thereof (and is not
excepted from the certification requirement contained in Section 313 of the
USA Patriot Act and the applicable regulations because it is both (i) an
affiliate of a depository institution or foreign bank that maintains a
physical presence in the United States or foreign country, and (ii) subject
to supervision by a banking authority regulating such affiliated depository
institution or foreign bank) shall deliver to the Agent the certification,
or, if applicable, recertification, certifying that such Bank is not a
"shell" and certifying to other matters as required by Section 313 of the USA
Patriot Act and the applicable regulations: (1) within ten (10) days after
the Closing Date, and (2) as such other times as are required under the USA
Patriot Act.
The following is hereby inserted as a new Section 9.18 of the Loan Agreement:
Confidentiality.
General.
Each Bank agrees to keep confidential all information obtained from the Loan
Parties which is nonpublic and confidential or proprietary in nature
(including without limitation any information a Loan Party specifically
13
designates as confidential), except as provided below, and to use such
information only in connection with this Agreement and for the purposes
contemplated hereby. Each Bank shall be permitted to disclose such
information (i) to outside legal counsel, accountants and other professional
advisors who need to know such information in connection with the
administration and enforcement of this Agreement, subject to agreement of
such Persons to maintain the confidentiality of such information in
accordance with the terms hereof, (ii) to assignees and participants as
contemplated by Section 8.17, and prospective assignees and participants,
subject to the agreement of such Persons to maintain the confidentiality of
such information in accordance with the terms hereof, (iii) to the extent
requested by any bank regulatory authority or, with notice to the applicable
Loan Party, as otherwise required by applicable Law or by any subpoena or
similar legal process, or in connection with any investigation or proceeding
arising out of the transactions contemplated by this Agreement or the other
Loan Documents, (iv) if it becomes publicly available other than as a result
of a breach of this Agreement or becomes available from a source not known to
be subject to confidentiality restrictions, or (v) if the applicable Loan
Party shall have consented, in writing, to such disclosure. Notwithstanding
anything herein to the contrary, the information subject to this Section 9.18
shall not include, and a Bank may disclose without limitation of any kind,
any information with respect to the "tax treatment" and "tax structure" (in
each case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to such Bank relating to
such tax treatment and tax structure; provided that with respect to any
document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as other
information, this sentence shall only apply to such portions of the document
or similar item that relate to the tax treatment or tax structure of the
Loans and transactions contemplated hereby.
Sharing Information With Affiliates of the Bank.
The Loan Parties acknowledge that from time to time financial advisory,
investment banking and other services may be offered or provided to the Loan
Parties or one or more of its Affiliates (in connection with this Agreement
or otherwise) by a Bank or by one or more Subsidiaries or Affiliates of such
Bank and each Loan Party hereby authorizes such Bank to share any information
delivered to such Bank by the Loan Parties pursuant to this Agreement, or in
connection with the decision of the Bank to enter into this Agreement, to any
such Subsidiary or Affiliate of such Bank, it being understood that any such
Subsidiary or Affiliate of such Bank receiving such information shall be
bound by the provisions of Section 9.18 as if it were a Bank hereunder. Such
authorization shall survive the repayment of the Loans.
Schedule 1 to the Loan Agreement is hereby deleted in its entirety and in its
stead is inserted the Schedule of Banks and Commitments attached hereto and
made a part hereof as Exhibit A.
Exhibit "B" to the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the Form of Term Note attached hereto and made a part
hereof as Exhibit B.
14
Exhibit "C" to the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the Compliance Certificate attached hereto and made a
part hereof as Exhibit C.
Schedules 2.06, 3.10, 3.14 and 3.21 to the Loan Agreement are hereby deleted
in their entirety and in their stead is inserted Schedules 2.06, 3.10, 3.14
and 3.21 attached hereto and made a part hereof as Exhibit D.
The provisions of Section 2 through 34 of this First Amendment shall not
become effective until the Agent has received the following, each in form and
substance acceptable to the Agent:
this First Amendment, duly executed by the Borrower and the Banks;
the documents listed in the Preliminary Closing Checklist set forth on
Exhibit E attached hereto and made a part hereof; and
such other documents as may be reasonably requested by the Agent.
The Borrower hereby reconfirms and reaffirms all representations and
warranties, agreements and covenants made by and pursuant to the terms and
conditions of the Loan Agreement, except as such representations and
warranties, agreements and covenants may have heretofore been amended,
modified or waived in writing in accordance with the Loan Agreement, and
except any such representations or warranties made as of a specific date or
time, which shall have been true and correct in all material respects as of
such date or time.
The Borrower acknowledges and agrees that each and every document, instrument
or agreement which at any time has secured payment of the Borrower's
Indebtedness under the Loan Agreement including, but not limited to, (i) the
Loan Agreement and (ii) the Guaranty Agreements continue to secure prompt
payment when due of the Borrower's Indebtedness under the Loan Agreement.
The Borrower hereby represents and warrants to the Banks and the Agent that
(i) the Borrower has the legal power and authority to execute and deliver
this First Amendment; (ii) the officers of the Borrowers executing this First
Amendment have been duly authorized to execute and deliver the same and bind
the Borrower with respect to the provisions hereof; (iii) the execution and
delivery hereof by the Borrower and the performance and observance by the
Borrower of the provisions hereof and of the Loan Agreement and all documents
executed or to be executed therewith, do not violate or conflict with the
organizational documents of the Borrower or any Law applicable to the
Borrower or result in a breach of any provision of or constitute a default
which would have a Material Adverse Effect under any other agreement,
instrument or document binding upon or enforceable against the Borrower and
(iv) this First Amendment, the Loan Agreement and the documents executed or
to be executed by the Borrower in connection herewith or therewith constitute
valid and binding obligations of the Borrower in every respect, enforceable
in accordance with their respective terms.
The Borrower represents and warrants that (i) no Event of Default exists
under the Loan Agreement, nor will any occur as a result of the execution and
delivery of this First Amendment or the performance or observance of any
provision hereof; (ii) the Schedules attached to and made part of the Loan
Agreement are true and correct as of the date hereof in all material respects
and there are no material modifications or supplements thereto; and (iii) it
presently has no claims or actions of any kind at law or in equity against
the Banks or the Agent arising out of or in any way relating to the Loan
Agreement or the other Loan Documents.
15
Each reference to the Loan Agreement that is made in the Loan Agreement or
any other document executed or to be executed in connection therewith shall
hereafter be construed as a reference to the Loan Agreement as amended
hereby.
The agreements contained in this First Amendment are limited to the specific
agreements made herein. Except as amended hereby, all of the terms and
conditions of the Loan Agreement shall remain in full force and effect. This
First Amendment amends the Loan Agreement and is not a novation thereof.
This First Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
This First Amendment shall be governed by, and shall be construed and
enforced in accordance with, the Laws of the Commonwealth of Pennsylvania
without regard to the principles or the conflicts thereof. The Borrower
hereby consents to the jurisdiction and venue of the Court of Common Pleas of
Allegheny County, Pennsylvania and the United States District Court for the
Western District of Pennsylvania with respect to any suit arising out of or
mentioning this First Amendment.
[INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto,
have caused this First Amendment to be duly executed by their duly authorized
officers as of the day and year first above written.
Borrower:
ATTEST Matthews International Corporation
By: Steven F. Nicola By: David M. Kelly
------------------------- -------------------------
Name: Steven F. Nicola Name: David M. Kelly
Title: Secretary Title: President
Citizens Bank of Pennsylvania,
as Agent and for itself as a Bank
By: Curtis C. Hunter, III
-------------------------
Name: Curtis C. Hunter, III
Title: Vice President
PNC Bank, National Association,
as Syndication Agent and for
itself as a Bank
By: David G. Schaich
-------------------------
Name: David G. Schaich
Title: Vice President
National City Bank of Pennsylvania,
as Documentation Agent and for
itself as a Bank
By: Dominic J. Pellicciotti
-------------------------
Name: Dominic J. Pellicciotti
Title: Vice President