AMENDED AND RESTATED
SECOND AMENDMENT AND CONSENT
to
CREDIT AGREEMENT
AMENDED AND RESTATED SECOND AMENDMENT AND CONSENT dated as of March 31,
1999 (this "Amendment") by and among PRECISE HOLDING CORPORATION, a Delaware
corporation ("Parent"), PRECISE TECHNOLOGY, INC., a Delaware corporation (the
"Borrower"), each Subsidiary of the Borrower party to the Credit Agreement
referred to below (each a "Subsidiary Guarantor" and collectively, the
"Subsidiary Guarantors"), the banks, financial institutions and other
institutional lenders party to the Credit Agreement referred to below (the
"Lenders") and FLEET NATIONAL BANK ("Fleet"), as agent for the Lenders (the
"Agent") and as Issuing Bank, to the Credit Agreement. Capitalized terms used
but not defined herein shall have the meanings given to such terms in the Credit
Agreement.
WHEREAS, Parent, the Borrower, each Subsidiary Guarantor, the Lenders and
Fleet are parties to that certain Credit Agreement dated as of June 13, 1997 (as
the same has been and may be further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), pursuant to which the Lenders made
loans to, and established credit facilities for, the Borrower;
WHEREAS, Parent, the Borrower, each Subsidiary Guarantor, the Lenders and
Fleet are parties to that certain Second Amendment and Consent dated as of March
12, 1999 (the "Second Amendment"), which Second Amendment is superseded by this
Amendment;
WHEREAS, the Borrower wishes to form a domestic Subsidiary, Precise Canada,
Inc., ("Precise Canada") to form a wholly-owned Canadian Subsidiary to acquire
and hold 100% of the issued and outstanding capital stock (the "Accura Stock")
of Accura Molding Company Ltd., a company incorporated under the laws of the
Province of Ontario, Canada ("Accura") in the manner and on the terms and
conditions set forth below;
WHEREAS, the Borrower has requested that the Lenders consent to certain
modifications and amendments to the Credit Agreement to permit, inter alia, (i)
the formation of Precise Canada and the Acquisition Sub; (ii) the Accura
Acquisition; and (iii) the Borrower to use loan proceeds of up to $5,000,000 for
the Accura Acquisition;
WHEREAS, subject, in each case, to the terms and conditions herein, the
Lenders are willing to grant such consent and agree to such modifications and
amendments;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, each of the parties hereto hereby agrees as follows:
1. Amendments to Credit Agreement.
(a) Preliminary Statement. On and after the Amendment Effective Date (as
hereinafter defined), the Preliminary Statement in the Credit Agreement is
hereby amended by replacing it in its entirety with the following:
"The Borrower has requested that the Lenders lend to the Borrower up
to $30,000,000 in order to (i) effect the Refinancing Transactions, (ii)
furnish certain working capital, (iii) fund the Permitted Acquisitions and
certain general corporate requirements of the Borrower and its
Subsidiaries, (iv) fund a portion of the Accura Acquisition and (v) to pay
transaction fees and expenses in connection with the transactions
contemplated hereby. The Lenders have indicated their willingness to agree
to lend such amounts on the terms and conditions of this Agreement."
(b) Definitions. On and after the Amendment Effective Date, Section 1.01 of
the Credit Agreement is hereby amended by (i) adding the following new
definitions in the appropriate alphabetical order:
"Accura" means Accura Molding Company Ltd., a company incorporated
under the laws of the Province of Ontario, Canada.
"Accura Acquisition" means the acquisition by the Borrower through
Precise Canada and the Acquisition Sub of 100% of the issued and
outstanding capital stock of Accura in accordance with the terms and
conditions of this Agreement and the Accura Acquisition Documents.
"Accura Acquisition Agreement" means the Share Purchase Agreement
entered into among Lori Hofing, John Hofing, Carey Brabant, Mark Brabant,
1293177 Ontario Limited and 1293178 Ontario Limited, as vendors, the
Acquisition Sub, as purchaser, the Borrower, as guarantor, and Accura, in
form and substance satisfactory to the Agent.
"Accura Acquisition Closing Date" means the date of consummation of
the Accura Acquisition.
"Accura Acquisition Documents" means the Accura Acquisition Agreement
and all other documents and instruments entered into or delivered in
connection with the Accura Acquisition, each in form and substance
satisfactory to the Agent.
"Acquisition Sub" means 3027214 Nova Scotia Company, a Wholly-Owned
Subsidiary of Precise Canada, and an unlimited liability company
organized in the Province of Nova Scotia, Canada, for the sole purpose of
acquiring and holding the capital stock of Accura.
"Borrowing Base" on any date means the sum of (i) 85% of the value of
the Eligible Receivables plus (ii) 50% of the value of the Eligible
Inventory, provided, however, that no more than 50% of the Borrowing Base
shall consist of Eligible Inventory, in each case set forth in the most
recent Borrowing Base Certificate delivered to the Agent pursuant to the
terms of this Agreement on or prior to such date.
"Borrowing Base Certificate" means a certificate in substantially the
form of Exhibit K attached hereto, duly certified by the Chief Financial
Officer of the Borrower.
"Borrowing Base Deficiency" means, at any time, the failure of the
Borrowing Base at such time to equal or exceed the sum of (i) the aggregate
principal amount of the Revolving Credit Advances and the Letter of Credit
Advances outstanding at such time plus (ii) the aggregate Available Amount
under all Letters of Credit outstanding at such time.
"Borrowing Base Inventory" of any Person means all of such Person's
now owned and hereafter acquired inventory, goods, merchandise, and other
personal property, wherever located, to be furnished under any contract of
service or held for sale or lease, all returned goods, raw materials, other
materials and supplies of any kind, nature or description which are or
might be consumed in such Person's business or used in connection with the
packing, shipping, advertising, selling or finishing of such goods,
merchandise and such other personal property, and all documents of title or
other documents representing them.
"dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States of America, except as otherwise defined herein.
"Determination Date" has the meaning specified in the definition of
Pro Forma Basis.
"Eligible Inventory" means any Borrowing Base Inventory owned by the
Borrower or any Subsidiary Guarantor (minus any reserves requested by the
Agent) free and clear of all Liens (other than Liens in favor of the
Secured Parties securing the Secured Obligations) and satisfactory to the
Agent in its sole discretion other than the following:
(a) Borrowing Base Inventory consisting of "perishable agricultural
commodities" within the meaning of the Perishable Agricultural Commodities
Act of 1930, as amended, and the regulations thereunder, or on which a Lien
has arisen or may arise in favor of agricultural producers under comparable
state or local laws;
(b) Borrowing Base Inventory located on leaseholds or in warehouses or
with suppliers as to which no consent and agreement providing the Agent
with the right to repossess such Inventory at any time and such other
rights as may be acceptable to the Agent or for which a negotiable
warehouse receipt has been issued but not delivered to the Agent;
(c) Borrowing Base Inventory that is, consistent with past practices,
obsolete, unusable or otherwise unavailable for sale;
(d) Borrowing Base Inventory with respect to which any representation
or warranty set forth in this Agreement or in the Security Agreement
applicable to such Inventory is not true and correct in all material
respects;
(e) Borrowing Base Inventory that fails to meet all standards imposed
by any governmental agency, or department or division thereof, having
regulatory authority over such Inventory or its use or sale, including, but
not limited to, the Fair Labor Standards Act, and Borrowing Base Inventory
that is subject to the so-called "hot goods" provision contained in Title
29, Section 215(a)(1) of the Federal Bankruptcy Code;
(f) Borrowing Base Inventory located outside the continental United
States and Canada;
(g) Borrowing Base Inventory that is not in the possession of or under
the sole control of the Borrower or any Subsidiary Guarantor;
(h) Borrowing Base Inventory consisting of work in progress;
(i) Borrowing Base Inventory held for consumption by the Borrower or a
Subsidiary of the Borrower and not for sale in the ordinary course of
business, including, but not limited to, Borrowing Base Inventory
consisting of promotional, marketing, packaging and shipping materials and
supplies;
(j) Borrowing Base Inventory subject to the bill-and-hold arrangement
between Accura and Brita (Canada), Inc. or any affiliate of Brita (Canada),
Inc. described in the proviso to subclause (k) of the definition of
Eligible Receivables;
(k) Borrowing Base Inventory consisting of specific molds prepared for
special orders as determined by the Agent in its sole discretion; and
(l) Borrowing Base Inventory in respect of which the Security
Agreement, after giving effect to the related filings of financing
statements that have then been made, if any, does not or has ceased to
create a valid and perfected first and only priority security interest and
lien in favor of the Secured Parties securing the Secured Obligations and
as to which no other Liens exist.
The value of such Eligible Inventory shall be its book value determined in
accordance with the "first-in, first-out" method of accounting for inventory and
in accordance with GAAP unless the Agent determines, in its sole discretion
(taking into consideration, among other factors, cost and liquidation value),
that such Eligible Inventory shall be valued at a lower value. Notwithstanding
the foregoing, the Agent, in its sole and absolute discretion, may include such
other items of Borrowing Base Inventory as Eligible Inventory as it shall deem
appropriate from time to time.
"Eligible Receivables" means only such Receivables owned by the
Borrower or any Subsidiary Guarantor (minus any reserves requested by the
Agent) as the Agent in its sole discretion shall from time to time elect to
consider Eligible Receivables for purposes of this Agreement that are free
and clear of all Liens (other than Liens in favor of the Secured Parties
securing the Secured Obligations) other than the following:
(a) Receivables that do not arise out of sales of goods or rendering
of services in the ordinary course of the business of the Borrower or any
Subsidiary Guarantor;
(b) Receivables on terms other than those normal or customary in the
business of the Borrower or any Subsidiary Guarantor;
(c) Receivables owing from any Person that is an employee, officer,
director or other Affiliate of the Borrower;
(d) Receivables more than 90 days past original invoice date or more
than 60 days past the date due;
(e) Receivables owing from any Person from which an aggregate amount
of more than 35% of the Receivables owing from such Person is more than 60
days past due;
(f) Receivables owing from any Person (i) that has disputed liability
for any Receivable owing from such Person, but only to the extent of the
amount in dispute or (ii) that has otherwise asserted any claim, demand or
liability, whether by action, suit, counterclaim or otherwise, but only to
the extent of the amount of any such claim, demand or liability;
(g) Receivables owing from any Person that shall take or be the
subject of any action or proceeding of a type described in Section 6.01(f);
(h) Receivables (i) owing from any Person that is also a supplier to
or creditor of the Borrower, unless such Person has waived any right of
set-off in a writing in form acceptable to the Agent, or (ii) representing
any manufacturer's or supplier's credits, discounts, incentive plans or
similar arrangements entitling the Borrower to discounts on future
purchases therefrom;
(i) Receivables with respect to which any representation or warranty
set forth in this Agreement or in the Security Agreement applicable to
Receivables is not true and correct in all material respects;
(j) Receivables arising out of sales to account debtors outside the
continental United States and Canada unless (i) acceptable to the Agent in
its sole discretion and (ii) fully supported by an irrevocable letter of
credit issued or confirmed by a commercial bank having a long-term
unsecured debt rating of at least "A" (or the equivalent thereof) from S&P
or "A2" (or the equivalent thereof) from Moody's and on terms acceptable to
the Agent in its sole discretion;
(k) Receivables arising out of sales on a bill-and-hold, guaranteed
sale, installment sale, sale-or-return, sale on approval or consignment
basis or subject to any right of return, set-off or charge-back; provided,
however, that, notwithstanding the foregoing, Eligible Receivables shall
include Receivables arising out of sales by Accura of product to Brita
(Canada) Inc. or any of its affiliates on a bill-and-hold (deferred
shipment) basis so long as (i) the Collateral Agent shall have and maintain
a valid and perfected first and only priority security interest and lien in
favor of the Secured Parties in all such Receivables and (ii) such sales
are on terms and conditions satisfactory to the Agent and are valid,
legally enforceable obligations of Brita (Canada) Inc., unless the Agent
determines, in its sole discretion, that such Receivables are not Eligible
Receivables;
(l) Receivables owing from an account debtor that is an agency,
department or instrumentality of the United States, any State thereof
or of Canada or any Province thereof unless the Borrower has complied
in a manner satisfactory to the Agent with the Federal Assignment of
Claims Act of 1940, as amended, or any state, municipal or other
governmental agency or instrumentality statute, rule, regulation or
similar foreign legislation relating to the assignment of claims
against such governmental authority with respect to the assignment of
such Receivables and the Agent is satisfied as to the absence of
set-offs, counterclaims and other defenses on the part of such account
debtor;
(m) Receivables the full and timely payment of which the Agent in
its reasonable judgment believes to be doubtful;
(n) Receivables that arise from the retail sale of goods to a
Person who is purchasing such goods primarily for personal, family or
household purposes;
(o) Receivables arising out of sales to account debtors located
in any state that requires that the Borrower or any Subsidiary
Guarantor, in order to sue any account debtor in such state's courts,
either (i) qualify to do business in such state or (ii) file an annual
or similar report with the taxation department of such state, unless,
if the account debtor is located in any such state, the Borrower or
Subsidiary Guarantor, as applicable, has either qualified as a foreign
corporation
authorized to transact business in such state, or has filed
appropriate reports with the taxation division on a timely basis;
(p) with respect to any Receivables in connection with which the
Borrower has been issued a credit insurance policy, the Agent is not
the beneficiary of such credit insurance policy; and
(q) Receivables in respect of which the Security Agreement, after
giving effect to the related filings of financing statements that have
then been made, if any, and blocked account letters, if any, does not
or has ceased to create a valid and perfected first and only priority
security interest and lien in favor of the Secured Parties securing
the Secured Obligations and as to which no other Liens exist.
The value of such Eligible Receivables shall be their book value determined in
accordance with GAAP unless the Agent determines, in its sole discretion, that
such Eligible Receivables shall be valued at a lower value. Notwithstanding the
foregoing, the Agent, in its sole and absolute discretion, may include such
other Receivables as Eligible Receivables as it shall deem appropriate from time
to time.
"Parent Contribution" has the meaning specified in Section
5.02(d)(v)(f).
"Parent Subordinated Debt" means unsecured Debt owing to Parent
in the aggregate outstanding principal amount of $1,000,000 which is
subordinated on terms satisfactory to the Agent to all Obligations
hereunder and any other obligations secured pursuant to the Collateral
Documents and evidenced by the Parent Subordinated Note, the express
terms of which (i) shall provide that interest thereon shall not be
paid in cash at any time and that such Debt shall require no
amortization, sinking fund payment or any other scheduled maturity of
the principal amount thereof on any date which is earlier than the
date occurring one year after the Final Maturity Date and (ii) shall
include such covenants, defaults and remedies satisfactory to the
Agent and the Required Lenders.
"Parent Subordinated Note" means the unsecured subordinated
promissory note issued by the Borrower in favor of Parent evidencing
the Parent Subordinated Debt, in form and substance satisfactory to
the Agent and the Required Lenders.
"Precise Canada" means Precise Canada, Inc., a Wholly-Owned
Subsidiary of the Borrower, incorporated in the State of Delaware, for
the sole purpose of holding and pledging the capital stock of the
Acquisition Sub.
"Revolving Credit Availability" means, at any time (a) prior to
September 30, 1999, the aggregate Unused Revolving Credit Commitment
of all Lenders under the Revolving Credit Facility, and (b) on and
after September 30, 1999, the lesser of (x) the aggregate Unused
Revolving Credit Commitment of all Lenders under the Revolving Credit
Facility and (y) the Borrowing Base (as determined based on the most
recent Borrowing Base Certificate delivered to the Agent
hereunder) less the sum of the aggregate principal amount of all
Revolving Credit Advances then outstanding."; and
(ii) amending the definition of "Funded Debt" by inserting the
following at the end thereof:
"; provided, however, that for purposes of Section 5.04, "Funded
Debt" shall not include the Parent Subordinated Debt"; and
(iii) amending the definition of "Subsidiary Guarantors" by deleting
such definition in its entirety and inserting the following new definition in
lieu thereof:
"Subsidiary Guarantor" means (i) each Subsidiary of the Borrower
(including, but not limited to, Accura, Precise Canada and Acquisition
Sub), and (ii) each Person which shall have executed and delivered or
become a party to a Subsidiary Guaranty hereunder."
(c) Advances. On and after the Amendment Effective Date, Section 2.01
(a) of the Credit Agreement is hereby deleted in its entirety and the following
inserted in lieu thereof:
"SECTION 2.01. The Advances. (a) The Revolving Credit
Advances. each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a
"Revolving Credit Advance") to the Borrower from time to time on
any Business Day during the period from the Effective Date until
the Final Maturity Date in an amount for each such Advance not to
exceed such Lender's Unused Revolving Credit Commitment at such
time after giving effect to any repayment of Letter of Credit
Advances from proceeds of such Revolving Credit Advances, which
Revolving Credit Advances shall, at the option of the Borrower,
be Base Rate Advances or Eurodollar Rate Advances; provided,
however, that no Lender shall have any obligation to make a
Revolving Credit Advance pursuant to this Section 2.01(a) to the
extent that (A) for any Revolving Credit Advance requested prior
to September 30, 1999, based on calculations made by the Borrower
on a pro forma basis after giving effect to such Advance, the
Senior Leverage Ratio for the Borrower's most recently ended
fiscal quarter for which financial statements are available
immediately preceding the date of such Advance is greater than
the ratio for such fiscal quarter in Section 5.04(a)(ii), and (B)
on and after September 30, 1999, such Revolving Credit Advance
would cause the aggregate amount of Revolving Credit Advances
outstanding (after giving effect to any immediate application of
the proceeds thereof) to exceed the lesser of (i) Revolving
Credit Facility less the Letter of Credit Advances then
outstanding plus the aggregate Available Amount of all Letters of
Credit then outstanding and (ii) the Borrowing Base less the
Letter of Credit Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding. Each
Borrowing of (x) Base Rate Advances shall be in an aggregate
amount of $100,000 or any whole multiple thereof and (y)
Eurodollar Rate Advances shall be in an aggregate amount of
$300,000 or an integral multiple of
$100,000 in excess thereof, (other than a Borrowing the proceeds
of which shall be used solely to repay or prepay in full
outstanding Letter of Credit Advances made by the Issuing Bank)
and shall consist of Revolving Credit Advances made
simultaneously by the Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Lender's
Unused Revolving Credit Commitment in effect from time to time,
the Borrower may borrow under this Section 2.01(a), prepay
pursuant to Section 2.06(a) and reborrow under this Section
2.01(a), subject to the terms and conditions hereof."
(d) Mandatory Prepayments. On and after the Amendment Effective
Date, (i) Section 2.06(b)(iii) of the Credit Agreement is hereby deleted in its
entirety and the following inserted in lieu thereof:
"(iii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowings, and the Letter of Credit
Advances equal to the amount by which (A) the sum of the
aggregate principal amount of (x) the Revolving Credit Advances
and (y) the Letter of Credit Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then
outstanding exceeds (B) the Revolving Credit Availability. Each
such prepayment shall be applied as set forth in Section
2.06(c)."; and
(ii) Section 2.06(b)(iv) of the Credit Agreement is hereby
deleted in its entirety and the following inserted in lieu thereof:
"(iv) The Borrower, shall, on each Business Day, pay to the
Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such
Account to equal the amount by which the aggregate Available
Amount of all Letters of Credit then outstanding exceeds the
lesser of (A) the Revolving Credit Facility less the sum of the
aggregate principal amount of all Revolving Credit Advances then
outstanding and (B) the Letter of Credit Facility and, on and
after September 30, 1999, (C) the Borrowing Base (as determined
based on the most recent Borrowing Base Certificate delivered to
the Agent hereunder) less the sum of the aggregate principal
amount of all Revolving Credit Advances then outstanding."
(e) Use of Proceeds. On and after the Amendment Effective Date,
Section 2.14 of the Credit Agreement is hereby deleted in its entirety and the
following inserted in lieu thereof:
"SECTION 2.14. Use of Proceeds. The proceeds of the Advances
and issuances of Letters of Credit shall be available (and
the Borrower agrees that it shall use such proceeds and
Letters of Credit) solely to (i) effect the Refinancing
Transactions, (ii) furnish certain working capital, (iii)
fund the Permitted Acquisitions and certain general
corporate requirements of the Borrower and its Subsidiaries,
(iv) fund a portion of the Accura Acquisition (including
transaction fees and expenses in connection
therewith) in an amount not to exceed $5,000,000 at the
closing thereof and (v) pay transaction fees and expenses in
connection with the transactions contemplated hereby."
(f) Conditions Precedent to Each Borrowing and Issuance. On and
after the Amendment Effective Date, Section 3.02 of the Credit Agreement is
hereby amended by (i) deleting the word "and" appearing at the end of clause (a)
thereof; (ii) adding the following new clauses after clause (a) thereof:
"(b) for each Revolving Credit Advance or issuance or
renewal of any Letter of Credit on or after September 30, 1999,
the Borrowing Base exceeds the aggregate principal amount of the
Revolving Credit Advances plus Letter of Credit Advances plus the
aggregate Available Amount of all Letters of Credit then
outstanding after giving effect to such Advances or issuance or
renewal, respectively;
(c) (A) for any Borrowing or issuance prior to September 30,
1999, and based on calculations made by the Borrower on a Pro
Forma Basis as if the incurrence of such Borrowing or issuance
had occurred on the first day of the respective Calculation
Period relating to such incurrence or issuance, no Default or
Event of Default will exist under the financial covenants
contained in Section 5.04, and the Agent shall have received a
certificate of the Borrower dated as of the date of such
Borrowing or issuance and in form satisfactory to the Agent,
signed on the Borrower's behalf by its Chief Financial Officer,
certifying compliance with, and containing the calculations
required by, this Section 3.02(c), and (B) for any Borrowing or
issuance on and after September 30, 1999, the Agent shall have
received a Borrowing Base Certificate dated as of the last day of
the most recently ended month in compliance with Section 5.03(t);
and";
and (iii) renaming clause (b) thereof as clause (d).
(g) Liens. On and after the Amendment Effective Date, Section
5.02(a)(iv) of the Credit Agreement is hereby amended by adding the following
after the words "Section 5.02(b)(ii)" in the second line thereof:
"and Section 5.02(b)(xii)".
(h) Debt. On and after the Amendment Effective Date, Section 5.02
(b) of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (x) thereof; (ii) deleting the period at the end
of clause (xi) thereof and inserting in lieu thereof the text "; "; and (iii)
adding the following new clauses to the end thereof:
"(xii) Obligations of Accura under Capitalized Leases so
long as the aggregate principal amount of such Obligations shall
not exceed $2,000,000 at any time outstanding;
(xiii) Obligations in respect of the Parent Subordinated
Debt to the extent permitted by Section 5.02(d)(v)(f); and
(xiv) Obligations of Parent in respect of the issuance by
Parent of a series of preferred stock solely for the purpose of
making the Parent Contribution to the extent permitted by Section
5.02(d)(v)(f).".
(i) Purchases, Sales, Etc. of Assets. On and after the Amendment
Effective Date, Section 5.02(d) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (iii) thereof; (ii)
deleting the period at the end of clause (iv) thereof and inserting in lieu
thereof the text "; and"; and (iii) adding the following new clause to the end
thereof:
"(v) the Borrower and/or Precise Canada and/or the
Acquisition Sub may acquire Accura pursuant to the Accura
Acquisition Documents; provided that (a) the proposed Accura
Acquisition is consummated prior to May 15, 1999; (b) the stock
being acquired directly or indirectly by the Borrower and/or
Precise Canada and/or the Acquisition Sub pursuant to the Accura
Acquisition shall be 100% of the issued and outstanding capital
stock of Accura; (c) the total consideration for the Accura
Acquisition to be paid at the closing thereof shall be no greater
than Canadian $8,200,000 and the loan proceeds to be used by the
Borrower for the Accura Acquisition (and for transaction fees and
expenses in connection therewith) at the closing thereof shall
not exceed $5,000,000; (d) the Collateral Agent for the benefit
of the Secured Parties is able to obtain a first priority
perfected security interest in and lien upon substantially all of
the assets and properties of Accura, Precise Canada and the
Acquisition Sub, stock certificates representing 65% of the
capital stock of Accura and the Acquisition Sub and stock
certificates representing 100% of the capital stock of Precise
Canada, together, in each case, with undated stock powers duly
executed in blank, are delivered to the Collateral Agent for the
benefit of the Secured Parties; (e) the terms and conditions of
the Accura Acquisition Documents shall be in form and substance
satisfactory to the Agent; (f) Parent shall have made a cash
contribution to the Borrower in the form of equity and/or Parent
Subordinated Debt in an aggregate amount of $1,000,000 (the
"Parent Contribution"), evidenced, in the case of Parent
Subordinated Debt, by the Parent Subordinated Note, the proceeds
of which shall be used by the Borrower to consummate the Accura
Acquisition; (g) the Parent Subordinated Note shall have been
pledged and promptly delivered to the Collateral Agent on behalf
of the Secured Parties pursuant to the Parent Pledge Agreement,
as amended, and the Borrower and Parent shall have taken such
further actions as shall be necessary, or in the opinion of the
Agent desirable, to effect the foregoing; (h) all approvals,
opinions, certificates, reports, instruments, statements and
documents required to be delivered pursuant to this Agreement and
to the Amended and Restated Second Amendment and Consent to
Credit Agreement dated as of March 31, 1999, among Parent, the
Borrower, each Subsidiary of the Borrower, the Lenders and the
Agent shall have been timely delivered as required; and (i) no
Default or Event of Default then exists or would result
therefrom.
Promptly following the consummation of the Accura Acquisition,
the Borrower shall deliver to the Agent true, correct and
complete copies, certified as such by
the Chief Financial Officer of the Borrower, of all of the Accura
Acquisition Documents. The consummation of the Accura Acquisition
shall be deemed to be a representation and warranty by the
Borrower that all conditions thereto have been satisfied and that
same is permitted in accordance with the terms of this Agreement,
which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including
without limitation, Article V."
(j) Investments in Other Persons. On and after the Amendment
Effective Date, Section 5.02(e) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (xii) thereof; (ii)
deleting the period at the end of clause (xiii) thereof and inserting in lieu
thereof the text "; and," and (iii) adding the following new clause to the end
thereof:
"(xiv) the Borrower and/or Precise Canada and/or the
Acquisition Sub may make Investments to consummate the Accura
Acquisition to the extent permitted by Section 5.02(d)(v)."
(k) Change in Nature of Business. On and after the Amendment
Effective Date, Section 5.02(g) of the Credit Agreement is hereby amended by
(i) adding the following language after the word "Subsidiaries"
in line five thereof:
"and the Parent Subordinated Note"; and
(ii) adding the following to the end thereof:
"Notwithstanding anything to the contrary contained in this
Agreement, (i) Precise Canada will not engage in any business,
will have no material assets other than its ownership interest in
Acquisition Sub and will have no significant liabilities other
than those in connection with this Agreement, the other Loan
Documents and the Senior Subordinated Notes Guaranty and (ii) the
Acquisition Sub will not engage in any business, will have no
material assets other than its ownership interest in Accura and
will have no significant liabilities other than those in
connection with this Agreement, the other Loan Documents and the
Senior Subordinated Notes Guaranty."
(l) Reporting Requirements. On and after the Amendment Effective
Date, Section 5.03 of the Credit Agreement is hereby amended by (i) deleting
clause (ii) in each of Sections 5.03(b) and (c) in its entirety and inserting
the following in lieu thereof:
"(ii) a schedule in form satisfactory to the Agent of the
computations used by the Borrower in determining compliance with
the covenants contained in Section 5.04 and";
(ii) deleting clause (ii) in Section 5.03(d) in its entirety and
inserting the following in lieu thereof:
"(ii) a schedule in form satisfactory to the Agent of the
computations used by such accountants in determining, as of the
end of such Fiscal Year, compliance with the covenants contained
in Section 5.04,"; and
(iii) renaming clause (t) of Section 5.03 as clause (u) and
adding the following after clause (s) of Section 5.03:
"(t) Borrowing Base Certificate. As soon as available and in
any event within ten (10) Business Days after the end of each
month, commencing the month ended September 30, 1999, a Borrowing
Base Certificate, as at the end of the month, certified by the
Chief Financial Officer of the Borrower; provided, however, that
in the event the Borrower requests an Advance prior to October
14, 1999 but after September 30, 1999, the Borrower shall deliver
a Borrowing Base Certificate as of August 31, 1999 to the Agent
as a condition precedent to such Advance."
(m) Financial Covenants. On and after the Amendment Effective
Date, Section 5.04 of the Credit Agreement is hereby amended by:
(i) deleting Section 5.04(a)(i) in its entirety and inserting the
following new Section 5.04(a)(i) in lieu thereof:
"(a) (i) Total Leverage Ratio. Maintain a Total Leverage
Ratio for each period set forth below of not more than the amount
set forth below for such period:
Fiscal Quarter Ending Ratio
--------------------- -----
03/31/1998 6.70:1
06/30/1998 6.70:1
09/30/1998 6.25:1
12/31/1998 5.65:1
03/31/1999 5.40:1
06/30/1999 5.15:1
09/30/1999 4.65:1
12/31/1999 4.35:1
03/31/2000 4.05:1
06/30/2000 4.05:1
09/30/2000 4.05:1
12/31/2000 3.35:1
03/31/2001 3.35:1
06/30/2001 3.35:1
09/30/2001 3.35:1
12/31/2001 3.00:1
and thereafter"
; (ii) deleting Section 5.04(a)(ii) in its entirety and inserting
the following new Section 5.04(a)(ii) in lieu thereof:
"(ii) Senior Leverage Ratio. Maintain a Senior Leverage
Ratio for each period set forth below of not more than the amount
set forth below for such period:
Fiscal Quarter Ending Ratio
--------------------- -----
09/30/1997 1.80:1
12/31/1997 1.80:1
03/31/1999 1.30:1
06/30/1999 1.10:1
09/30/1999 1.10:1"
; (iii) deleting Section 5.04(b) in its entirety and inserting
the following new Section 5.04(b) in lieu thereof:
"(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge
Coverage Ratio for each Rolling Period set forth below of not
less than the amount set forth below for such Rolling Period:
Rolling Period Ending Ratio
--------------------- -----
09/30/1997 1.05:1
12/31/1997 1.05:1
03/31/1998 1.00:1
06/30/1998 1.00:1
09/30/1998 1.00:1
12/31/1998 1.05:1
03/31/1999 1.10:1
06/30/1999 1.15:1
09/30/1999 1.20:1
12/31/1999 1.35:1
03/31/2000 1.40:1
06/30/2000 1.40:1
09/30/2000 1.40:1
12/31/2000 1.50:1
and thereafter"
; (iv) deleting Section 5.04(c) in its entirety and inserting the
following new Section 5.04(c) in lieu thereof:
"(c) Interest Coverage Ratio. Maintain an Interest Coverage
Ratio for each Rolling Period set forth below of not less than
the amount set forth below for such Rolling Period:
Rolling Period Ending Ratio
--------------------- -----
09/30/1997 1.60:1
12/31/1997 1.60:1
03/31/1998 1.45:1
06/30/1998 1.45:1
09/30/1998 1.45:1
12/31/1998 1.60:1
03/31/1999 1.70:1
06/30/1999 1.80:1
09/30/1999 1.90:1
12/31/1999 2.05:1
03/31/2000 2.20:1
06/30/2000 2.20:1
09/30/2000 2.20:1
12/31/2000 2.60:1
03/31/2001 2.60:1
06/30/2001 2.60:1
09/30/2001 2.60:1
12/31/2001 3.00:1
and thereafter"
; (v) deleting the amount of "$2,000,000" opposite the Fiscal
Year 1999 in Section 5.04(e) of the Credit Agreement and inserting the amount of
"$3,000,000" in lieu thereof and adding the following proviso to the end of
Section 5.04(e):
"; provided, however, that (i) with respect to Fiscal Year
1999, the aggregate amount (without duplication) of all Capital
Expenditures made by the Borrower and its Subsidiaries shall not
exceed (x) $900,000 in the first fiscal quarter of 1999; (y)
$1,800,000 in the first two fiscal quarters of 1999, and (z)
$2,400,000 in the first three fiscal quarters of 1999 and (ii)
upon the occurrence of a Default or Event of Default in any
Fiscal Year, the aggregate amount of all Capital Expenditures
made by the Borrower and its Subsidiaries in such Fiscal Year
shall not exceed the greater of (x) the amount of all Capital
Expenditures made by the Borrower and its Subsidiaries during
such Fiscal Year to the date of such occurrence or (y)
$2,000,000."
; and (vi) inserting the following clause at the end thereof:
"(f) Minimum EBITDA. As of any fiscal quarter end, maintain
EBITDA calculated as of that date for the period of four
consecutive fiscal quarters of the Borrower ending on or
immediately prior to such date of not less than $14,500,000;
provided, however, that for purposes of this Section 5.04(f),
EBITDA will not include any earnings or income related to any
non-domestic Subsidiary of the Borrower."
(n) Events of Default. On and after the Amendment Effective Date,
Section 6.01 of the Credit Agreement is hereby amended by (i) inserting the term
",5.03(t)" after the term "5.02" referred to in Section 6.01(c) thereof; and
(ii) inserting "or" at the end of clause (n) thereof and adding the following as
a new clause:
"(o) any Borrowing Base Deficiency shall occur on or after
September 30, 1999;".
2. Waiver and Consent. (a) The Agent and the Lenders waive
compliance by the Borrower and the Acquisition Sub with the requirement of
Section 5.02(l) of the Credit Agreement for 100% of the capital stock of Accura
and the Acquisition Sub to be pledged to the Collateral Agent pursuant to the
Security Agreement and agree to the pledge by the Borrower of 65% of such
capital stock.
(b) The Agent and the Lenders hereby agree and consent to (i) the
merger of the Acquisition Sub into Accura following the Accura Acquisition, with
Accura as the surviving corporation, so long as no Default or Event of Default
then exists or would result therefrom, and (ii) the incurrence by the Borrower
of the Parent Subordinated Debt so long as such debt is evidenced by the Parent
Subordinated Note and such note is pledged by Parent to the Collateral Agent for
the benefit of the Secured Parties pursuant to the Parent Pledge Agreement, as
amended, and immediately delivered to the Collateral Agent.
(c) The Agent and the Lenders hereby waive compliance by Parent
with the requirement of Section 5.02(h) of the Credit Agreement to not amend,
modify or change its charter, certificate of incorporation or bylaws (or
equivalent organizational documentation) for the purpose of permitting Parent to
amend its certificate of incorporation solely to (i) remove the designation of 9
1/2% preferred stock currently referred to therein, (ii) add a designation of a
series preferred stock with terms to be fixed by resolution of the Board of
Directors of Parent and (iii) authorize one thousand (1,000) shares of such
preferred stock, which amendment shall be in a form acceptable to the Agent and
the Required Lenders.
3. Conditions Precedent. (A) The obligation of the Lenders to
execute and deliver this Amendment and to make any Advance after the Amendment
Effective Date under the Credit Agreement as amended hereby is subject to the
following:
(a) this Amendment shall have been executed and delivered by an
authorized officer of Parent, the Borrower and each other Loan
Party;
(b) the representations and warranties contained in each Loan
Document are correct on and as of the Amendment Effective Date,
before and after giving effect to this Amendment, such Borrowing
or issuance and to the application of the
proceeds therefrom, as though made on and as of such date other
than any such representations or warranties in all material
respects that, by their terms, refer to a specific date other
than the date of this Amendment, such Borrowing, in which case as
of such specific date; and
(c) no event shall have occurred and be continuing, or would
result from such Borrowing or issuance or from the application of
the proceeds therefrom, that constitutes a Default.
(B) The obligation of the Lenders to make Advances to the
Borrower after the Amendment Effective Date to fund the Accura Acquisition in
accordance with the Credit Agreement as amended hereby is subject to the
following (in addition to the conditions precedent set forth in Section 3(A)
above):
(a) the Lenders shall be satisfied that the assets and earnings
of the Borrower immediately following the Accura Acquisition
contemplated hereby will be sufficient to support the Obligations
of the Borrower under the Credit Agreement, the Notes and the
other Loan Documents and the timely amortization of all Debt and
other Obligations of the Borrower;
(b) the Accura Acquisition shall have been consummated in
accordance with the terms of the Accura Acquisition Documents,
without any waiver or amendment of any material term, provision
or condition set forth therein not consented to by the Agent and
the Required Lenders and in compliance with all applicable laws;
(c) the Parent Contribution shall have been made, the proceeds of
which shall be used to consummate the Accura Acquisition, and the
Parent Subordinated Note shall have been pledged to the
Collateral Agent for the benefit of the Secured Parties pursuant
to the Parent Pledge Agreement, as amended; and
(d) the Agent shall have received on or before the date of such
Borrowing, each dated as of the Accura Acquisition Closing Date
(unless otherwise specified), in form and substance satisfactory
to the Agent (unless otherwise specified) and in sufficient
copies for each Lender and Agent and Agent's counsel and to the
extent reasonably necessary to evidence the Borrowing to fund the
Accura Acquisition, the addition of any Subsidiary Guarantor and
to perfect the first priority security interest of the Secured
Parties and Collateral Agent in the assets of the Borrower and
its Subsidiaries, the documents required to be delivered pursuant
to Section 3.03 of the Credit Agreement, including, without
limitation:
(i) a supplement to the Credit Agreement duly
executed by Accura, Precise Canada and the
Acquisition Sub, together with amended schedules
to the Credit Agreement;
(ii) a Security Agreement duly executed by Accura,
Precise Canada and the Acquisition Sub in favor
of the Secured Parties and an
Amendment to the Parent Pledge Agreement duly
executed by Parent in favor of the Secured
Parties, together with (A) appropriate executed
UCC-1 financing statements and/or the Canadian
equivalent and, if necessary, any amendments to
existing UCC-1 financing statements, (B)
certificates representing the Accura Stock and
the capital stock of the Acquisition Sub and
Precise Canada, accompanied, in each case, by
undated stock powers executed in blank, and the
Parent Subordinated Note, duly endorsed in
blank, (C) duly executed copies in proper form,
to be filed by Stikeman, Elliot or its local
agent in the case of Accura and the Acquisition
Sub, of all recordings and filings of or with
respect to the Security Agreement and the Parent
Pledge Agreement, as amended, that the
Collateral Agent may deem necessary or desirable
in order to perfect and protect the Liens
created thereby and (D) evidence of the
insurance for Accura required by the terms of
the Security Agreement;
(iii) an Intellectual Property Security Agreement duly
executed by Accura, Precise Canada and the
Acquisition Sub in favor of the Secured Parties;
(iv) a Guaranty duly executed by Accura, Precise
Canada and the Acquisition Sub in favor of the
Secured Parties;
(v) Phase I and Phase II Environmental Assessment
Reports with respect to Accura, each dated
reasonably near the date of such Borrowing, and
the Borrower and/or Accura shall have obtained
Environmental Permits necessary to operate the
business of Accura and Accura shall maintain its
operations in compliance with such permits;
(vi) a certificate of the Borrower, signed on its
behalf by its Chief Financial Officer,
certifying as to the compliance by the Borrower
and its Subsidiaries (on a Consolidated basis)
as of the fiscal quarter ended December 31, 1998
with the covenants set forth in Section 5.04 of
the Credit Agreement;
(vii) certified copies of the resolutions of the Board
of Directors (or comparable governing body) of
the Borrower, Precise Canada, Accura and the
Acquisition Sub (including, in the case of
Accura and the Acquisition Sub, the
shareholders) approving the Accura Acquisition,
all other transactions contemplated thereby, the
creation of the security interest in the stock
of Precise Canada, Accura and the Acquisition
Sub contemplated hereby, any transfer of such
shares of capital stock to and by the Collateral
Agent in the course of any enforcement
proceedings, and all other transactions
contemplated by this Amendment, and of all
documents
evidencing other necessary corporate action and
governmental approvals, if any, with respect to
the Accura Acquisition and the Accura
Acquisition Documents related thereto, this
Amendment and the transactions contemplated
hereby;
(viii) an officer's certificate for Precise Canada,
Accura and the Acquisition Sub substantially in
the form required by Section 3.01(g)(v) of the
Credit Agreement;
(ix) certificate of status issued by the Ministry of
Consumer and Commercial Relations (Ontario) for
Accura dated on or reasonably near the date of
such Borrowing;
(x) certificate of status issued by the Deputy
Registrar of Joint Stock Companies (Nova Scotia)
for Acquisition Sub, dated on or reasonably near
the date of such Borrowing;
(xi) long form good standing certificate with
certified documents issued by the Secretary of
State of the State of Delaware dated on or
reasonably near the date of such Borrowing,
listing the charter of Precise Canada and each
amendment thereto on file in his office and
certifying that (A) such charter is a true and
correct copy thereof, (B) such amendments are
the only amendments to each such charter on file
in his office, (C) Precise Canada has paid all
franchise taxes to the date of such certificate
and (D) Precise Canada is duly incorporated and
in good standing under the laws of the
jurisdiction of its incorporation;
(xii) a certificate, in substantially the form of
Exhibit A attached hereto, attesting to the
Solvency of the Borrower and its Subsidiaries,
taken as a whole, immediately after giving
effect to the Accura Acquisition from the Chief
Financial Officer of the Borrower;
(xiii) blocked account letters duly executed by the
Borrower and its Subsidiaries;
(xiv) a favorable opinion of (A) Winston & Strawn,
special counsel for the Borrower and its
domestic Subsidiaries, (B) Stikeman, Elliot,
special Canadian counsel to the Borrower,
Precise Canada, Accura and the Acquisition Sub,
and (C) if the Agent deems necessary, special
tax counsel to the Borrower and its
Subsidiaries, each opinion as to such matters as
the Agent or its counsel may reasonably request,
including without limitation the due
authorization, execution and delivery of the
Accura Acquisition Documents and this Amendment,
the enforceability thereof, the perfection of
the security interests granted pursuant to the
Collateral Documents and the subordination of
the Parent Subordinated Debt;
(xv) a favorable opinion of Stewart McKelvey Stirling
Scales, special Province of Nova Scotia, Canada
counsel to the Borrower, Precise Canada, Accura
and the Acquisition Sub, indicating that (i)
there are no particular requirements of any laws
of the Province of Nova Scotia concerning the
form of a pledge of, or a stock power relating
to, the shares of a company incorporated under
the Companies Act (Nova Scotia), such as the
Acquisition Sub, or the transfer of ownership of
pledged shares in connection with the
enforcement of a pledge (other than approval of
such transfer by resolution of the directors or
shareholders of the issuers of such shares),
(ii) the Pledge and Security Agreement is in a
form sufficient under the laws of the Province
of Nova Scotia to create a security interest in
the shares to be pledged thereby (the "Pledged
Shares") and to enable the Collateral Agent or
the Lenders to realize on the Pledged Shares by
becoming the owner of them or by transferring
ownership of them to a third party without first
becoming the owner, (iii) the stock power is a
sufficient endorsement of the share certificates
representing the Pledged Shares to allow for the
registration of a transfer of the Pledged Shares
on the records of the Acquisition Sub upon
approval of such transfer by resolution of the
directors or shareholders of the Acquisition
Sub; and (iv) the pledge to the Collateral Agent
for the benefit of the Lenders will not, in and
of itself, result in any of the Collateral Agent
or the Lenders being regarding as a member of
Acquisition Sub or liable for its debts and
liabilities; and with respect to any other
matters as the Agent or its counsel may
reasonably request, including without limitation
the due authorization, execution and delivery of
the Accura Acquisition Documents and this
Amendment, the enforceability thereof, the
perfection of the security interests granted
pursuant to the Collateral Documents and the
subordination of the Parent Subordinated Debt;
(xvi) a processor letter in substantially the form of
Exhibit B attached hereto;
(xvii) true, correct and complete copies of the Accura
Acquisition Documents certified as such by the
Chief Financial Officer of the Borrower,
together with a true, correct and complete copy
of the existing contract between Accura and
Brita (Canada) Inc.;
(xviii) audited financial statements of Accura as of
June 30, 1998 and unaudited financial statements
of Accura as of December 31, 1998, in each case
in compliance with GAAP;
(xix) such financial, business and other information
regarding the Accura Acquisition as the Agent
and the Required Lenders shall have reasonably
requested, and, at the Borrower's expense, the
Agent, or any agents or representatives thereof,
may, if it deems necessary, visit and inspect
the property and assets of Accura and the Agent
shall be satisfied with the results of such
visit and inspection; and
(xx) the Agent shall have received such other
approvals, opinions, certificates, instruments
or documents, including, but not limited to,
such financing or continuation statements, and
other filing documents as the Collateral Agent
may deem necessary in order to perfect and
preserve the pledge, assignment and security
interest created under the Collateral Documents,
and as any Lender through the Agent may
reasonably request.
4. Fees. The Borrower shall pay to the Agent for the ratable
benefit of the Lenders on or prior to the Amendment Effective Date a fee (the
"Amendment Fee") in an amount equal to 1/4 of 1% of the amount of the total
Commitments together with all costs and expenses incurred by the Agent
(including, without limitation, the reasonable fees and disbursements of
counsel) in connection with the preparation and execution of this Amendment.
5. Representations and Warranties.
In order to induce the Agent and the Lenders to enter into this
Amendment, each of Parent and each Loan Party represents and warrants to the
Agent and the Lenders as follows:
(i) that no Default exists under the Credit
Agreement on the date hereof, both before and
after giving effect to this Amendment;
(ii) repeats and reaffirms, on and as of the
Amendment Effective Date, each of the
representations, warranties and agreements
contained in the Credit Agreement and each other
Loan Document after giving effect to this
Amendment;
(iii) the execution, delivery and performance by each
of Parent and each Loan Party of this Amendment
and the taking by it of all actions contemplated
hereby are within its corporate powers, have
been duly authorized by all necessary corporate
action and do not contravene (x) Parent's or any
Loan Party's charter or by-laws, or (y) any law
or any material contractual restriction binding
on or affecting Parent or any Loan Party;
(iv) no authorization, approval or other action by,
and no notice to or filing with, any
governmental authority or regulatory body is
required for the due execution, delivery and
performance by the each of Parent and each Loan
Party of this Amendment or for the
taking by it of any action contemplated hereby
to be taken by it; and
(v) this Amendment constitutes the valid and binding
obligations of each of Parent and each Loan
Party, enforceable against it in accordance with
its terms, except as enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium or other laws
relating to or limiting creditors' rights or by
equitable principles generally (regardless of
whether enforcement is sought in equity or at
law).
6. Miscellaneous.
(a) (i) This Amendment shall become effective on the date
(the "Amendment Effective Date") on which (A) Parent, the Borrower, each
Subsidiary Guarantor, the Agent and the Lenders shall have signed a copy of this
Amendment (whether the same or different counterpart) and the Borrower shall
have delivered the same to the Agent (including by way of facsimile device), and
(B) the Borrower shall have paid the Amendment Fee and the other costs and
expenses referred to in Section 4. This Amendment supersedes and terminates the
Second Amendment.
(ii) Notwithstanding anything to the contrary contained
above, it is hereby understood and agreed by each Loan Party that the consent by
the Agent and the Lenders herein to the Accura Acquisition is subject to all of
the conditions contained in Section 3 being met to the satisfaction of the Agent
and the Required Lenders.
(b) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
(c) Each of Parent and each Loan Party hereby irrevocably
and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Amendment,
or for recognition and enforcement of any
judgment in respect thereof, to the nonexclusive
general jurisdiction of the State of New York,
the courts of the United States of America for
the Southern District of New York, and appellate
courts from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts, and waives any
objection that it may now or hereafter have to
the venue of any such action or proceeding in
any such court or that such action or proceeding
was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing
a copy thereof by registered or certified mail
(or any substantially similar form of mail),
postage prepaid, to Parent or such Loan Party at
its address set forth in Section 8.02 of the
Credit Agreement or at such other address of
which the Agent has been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other
manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(v) WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN PARAGRAPHS (i) THROUGH
(iv) OF THIS SECTION 6(c).
(d) Each of Accura and the Acquisition Sub hereby irrevocably
designates, appoints and empowers CT Corporation System, with offices at 1633
Broadway, New York, New York 10019, as its designee, appointee and agent to
receive, accept and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices and documents
which may be served in any action or proceeding referred to in Section 6(c). If
for any reason such designee, appointee and agent shall cease to be available to
act as such, each of Accura and the Acquisition Sub agrees to designate a new
designee, appointee and agent in New York City on the terms and for the purposes
of this provision satisfactory to the Agent under this Amendment and the Credit
Agreement.
(e) This Amendment may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
(f) This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Loan Document. Except as otherwise provided
herein, all terms and conditions of the Credit Agreement and every other Loan
Document, respectively, and all obligations of Parent and each Loan Party and
rights of the Agent and each Lender thereunder shall remain in full force and
effect.
(g) This Amendment amends the terms of the Credit Agreement and
does and shall be deemed to form a part of, and shall be construed in connection
with and as part of, the Credit Agreement for any and all purposes. Any
reference to the Credit Agreement, following the execution and delivery of this
Amendment, shall be deemed a reference to such Credit Agreement as hereby
amended.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF the parties hereto have executed this
Amendment as of the date first above written.
PRECISE HOLDINGS CORPORATION
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
PRECISE TECHNOLOGY, INC.,
as Borrower
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
PRECISE TECHNOLOGY OF DELAWARE,
INC.
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
PRECISE TECHNOLOGY OF ILLINOIS, INC.
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
PRECISE TMP, INC.
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
PRECISE POLESTAR, INC.
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
MASSIE TOOL, MOLD & DIE, INC.
By /s/ William L. Remley
-----------------------------------------
Name: William L. Remley
Title:
FLEET NATIONAL BANK, as Agent and as
Issuing Bank
By /s/ Howard J. Diamond
-----------------------------------------
Name: Howard J. Diamond
Title: Vice President
LENDERS:
-------
FLEET NATIONAL BANK
By /s/ Howard J. Diamond
-----------------------------------------
Name: Howard J. Diamond
Title: Vice President
BANK AUSTRIA
CREDITANSTALT
CORPORATE FINANCE, INC.
(as successor by assignment to
Creditanstalt AG)
By /s/ Clifford L. Wells
-----------------------------------------
Name: Clifford L. Wells
Title: Vice President
By /s/ Maura K. Connor
-----------------------------------------
Name: Maura K. Connor
Title: Vice President