EXHIBIT 4.15
FIRST AMENDMENT TO
PURCHASE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Amendment"
or "Agreement"), dated as of February 20, 2004, is made by and among ERICO
INTERNATIONAL CORPORATION, an Ohio corporation (the "Issuer"), ERICO Products,
Inc., an Ohio corporation (the "Subsidiary Guarantor" or "Guarantor"), and CVC
CAPITAL FUNDING, LLC, a Delaware limited liability company ("Holder").
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Purchase Agreement (as defined below).
WHEREAS, the Issuer, the Subsidiary Guarantor and Citibank,
N.A. ("Citibank") entered into a Purchase Agreement dated as of September 9,
2002 (the "Purchase Agreement");
WHEREAS, pursuant to that certain Assignment and Acceptance,
dated as of September 12, 2002, by and between Citibank and Holder, (i) Citibank
sold and assigned to Holder, and Holder purchased and assumed from Citibank, all
of Citibank's rights, title, interests and obligations in and under each of the
Purchase Agreement and the Indenture, and (ii) Holder became a party to the
Purchase Agreement and the Indenture;
WHEREAS, the Issuer proposes to issue $140.9 million of
Eligible Debt Securities (the "Exchange Securities") and to exchange Securities
having an aggregate principal amount of $19.4 million for Exchange Securities
having an aggregate principal amount equal to an amount to be calculated in
accordance with the terms of the Purchase Agreement (such exchange the "Exchange
Transaction"); and
WHEREAS, the Issuer has requested that Holder amend certain
provisions of the Agreement to permit the Exchange Transaction and transactions
related thereto, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants contained herein, the parties hereto agree
as follows:
1. Amendment to Agreement. Section 6 of the Agreement is
hereby amended by deleting Section 6 thereof in its entirety and replacing it
with the following:
"6. Exchange.
(a) Concurrently with and at any time following
any issuance of Eligible Debt Securities (as defined below)
prior to August 15, 2004 (the "Exchange Deadline") by (i) the
Issuer, (ii) ERICO Holdings or (iii) Global, at the option of
the Purchaser, pursuant to the provisions of Section 6(b)
below, (x) the Issuer shall exchange (an "Exchange") or cause
ERICO Holdings or Global to exchange, at the option of the
Purchaser, all or a portion of the Purchaser's then
outstanding Securities (the Securities to be so exchanged, the
"Exchange Securities"), and the Purchaser will exchange such
Exchange Securities, for Eligible Debt Securities having a
principal amount equal to the product of (A) the principal
amount of the Exchange Securities multiplied by (B) the price
at which the Eligible Debt Securities are offered to investors
by the initial purchasers thereof (expressed as a percentage
of the principal amount of the Eligible Debt Securities so
offered) and (y) the Issuer shall pay or cause ERICO Holdings
or Global to pay all accrued and unpaid interest on the
Exchange Securities.
As used herein, "Eligible Debt Securities" means debt
securities that (i) are issued by the Issuer, ERICO Holdings
or Global (such issuer, the "Exchange Issuer") to qualified
institutional buyers (as defined in Rule 144A under the
Securities Act) pursuant to Section 4(2) of the Securities Act
in an aggregate principal amount of not less than $100.0
million, (ii) are intended to be eligible for resale pursuant
to Rule 144A of the Securities Act, (iii) have terms no less
favorable to the Exchange Issuer than market terms for an
issuance of debt securities issued by issuers in the same
industry as the Issuer with ratings from nationally recognized
rating agencies identical to the ratings assigned to the
Exchange Issuer, (iv) are subject to a registration rights
agreement to be entered into by and among the Exchange Issuer
and the initial purchasers of such Eligible Debt Securities
(including, without limitation, the Purchaser, if the
Purchaser has elected to exchange any Securities for such
Eligible Debt Securities pursuant to this Section 6(a)),
pursuant to which the Exchange Issuer will have agreed to (A)
file a registration statement (the "Exchange Offer
Registration Statement") after the issue date of such Eligible
Debt Securities (such issue date, the "Eligible Debt
Securities Issuance Date") with respect to an offer to
exchange such Eligible Debt Securities for new issues of debt
securities of the Exchange Issuer registered under the
Securities Act, with terms substantially identical to those of
the Eligible Debt Securities, and (B) use its best efforts to
cause the Exchange Offer Registration Statement to be declared
effective by the SEC on or prior to a specified date after the
Eligible Debt Securities Issuance Date (subject to remedies
and exceptions usual and customary for registration rights
granted in connection with an initial issuance of high-yield
debt securities); provided, that if and to the extent that the
Commission's rules and regulations in effect on the Eligible
Debt Securities Issuance Date (or any of its interpretations
thereof) prohibit the Exchange Issuer from granting the
Purchaser registration rights on the foregoing terms and
conditions, then the Exchange Issuer and the Purchaser instead
shall enter into a registration rights agreement providing for
"shelf" registration rights in connection with the Eligible
Debt Securities to be acquired by Purchaser pursuant to
Section 6(a), in substantially the same form as the
registration rights agreement to be executed and delivered by
and among the Exchange Issuer and the Initial Purchasers (the
applicable form of registration rights agreement, the
"Registration Rights Agreement"), and (v) qualify as a
Qualifying Collateral Debt Asset (as defined in the CVC
Capital Indenture).
(b) At least ten Business Days prior to any
Eligible Debt Securities Issuance Date, the Issuer shall give
written notice of the proposed Exchange to the Purchaser and
the trustee, if any, under the Indenture. Such notice shall
set forth (i) the proposed Eligible Debt Securities Issuance
Date, (ii) the aggregate principal amount of Eligible Debt
Securities to be so issued and (iii) the price at which the
Eligible Debt Securities will be offered to investors by the
initial purchasers thereof (expressed as a percentage of the
principal amount of the Eligible Debt Securities so offered).
The Purchaser may elect at any time on or
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prior to the Exchange Deadline to exchange, pursuant to the
terms and conditions of Section 6(a) above, all or any portion
of the outstanding Securities held by the Purchaser for such
Eligible Debt Securities by delivering a written notice to the
Issuer setting forth (i) the aggregate principal amount of the
Securities to be so exchanged and (ii) the intended effective
date for such Exchange, which date, if not the Eligible Debt
Securities Issuance Date, shall be no earlier than two
Business Days following receipt by the Issuer of such notice.
The parties hereto agree that, as a condition to the
effectiveness of any Exchange, (i) the Purchaser shall have
received payment in full in immediately available funds of (A)
all reasonable expenses (including attorney's fees) incurred
in connection with the negotiation and execution of any
documents, instruments and agreements executed and/or
delivered in connection therewith and (B) all accrued and
unpaid interest on the Securities to be exchanged to the date
of such Exchange, (ii) the Exchange Issuer, the Purchaser and,
if applicable, the other initial purchasers of such Eligible
Debt Securities shall have executed and delivered the
Registration Rights Agreement, and such agreement shall be in
full force and effect, and (iii) the trustee, if any, under
the Indenture shall have received all documents required under
the Indenture or otherwise requested by such trustee in
connection with such Exchange. The parties hereby waive the
notice requirements under this Section 6(b) in connection with
the Exchange Transaction.
(c) If, upon the occurrence of the Exchange
Deadline, less than all of the Securities have been exchanged
for Eligible Debt Securities pursuant to Section 6(a) above,
the Issuer may, at its option, redeem all or any portion of
the then issued and outstanding Securities in accordance with
the terms of the Indenture and the Securities.
(d) Subject to the terms and conditions of this
Section 6, each of the Issuer, the Subsidiary Guarantor, the
Exchange Issuer, and the Purchaser shall take or cause to be
taken all actions and do or cause to be done all things
necessary to consummate and make effective the transactions
contemplated by Section 6(a) and 6(c) above."
2. Representations and Warranties. Each of the Issuer
and the Subsidiary Guarantor represents and warrants, on and as of the date
hereof, and as of the Effective Date, as follows:
(a) The execution and delivery by the Issuer and the
Subsidiary Guarantor of, and the performance by the Issuer and the Subsidiary
Guarantor of its obligations under, this Amendment will not contravene (i) any
agreement or other instrument binding upon the Issuer or the Subsidiary
Guarantor or any of their respective Subsidiaries (including, without
limitation, the Credit Agreement); (ii) any provision of applicable law, (iii)
any provision of the certificate of incorporation or by-laws of the Issuer and
the Subsidiary Guarantor, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer, the
Subsidiary Guarantor or any Subsidiary. No consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by the Issuer and the Subsidiary Guarantor of their obligations
under this Amendment.
(b) This Amendment has been duly authorized, executed and
delivered by each of the Issuer and the Subsidiary Guarantor and is a valid and
binding obligation of each of the Issuer and the
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Subsidiary Guarantor, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(c) Since December 31, 2003, there has not occurred any
Material Adverse Effect or any development reasonably likely to result in a
Material Adverse Effect.
(d) Subject to the immediately proceeding sentence, no
Default or Event of Default exists under the Indenture and, immediately after
giving effect to this Amendment, no such Default or Event of Default will exist.
The parties hereto agree that neither the issuance of Eligible Debt Securities
pursuant to the Exchange Transaction or any other action taken by the Company in
connection therewith shall constitute a Default or Event of Default under
Section 4.12 of the Indenture.
3. Conditions. This Amendment shall become effective as
of the date upon which all of the following conditions are satisfied (the
"Effective Date"):
(a) Holder, the Subsidiary Guarantor and the Issuer shall
have executed and delivered an amendment to the Indenture in the form attached
hereto as Exhibit A (the "Indenture Amendment"), and such Indenture Amendment
shall be in full force and effect.
(b) Holder shall have received duly executed Securities
from the Company in an aggregate principal amount of $30.0 million, in the form
attached hereto as Exhibit B, for the account of Holder and dated on or before
the Effective Date (the "Replacement Notes").
(c) The representations and warranties of each of the
Issuer and the Subsidiary Guarantor set forth in Section 2 above shall be true
and correct as of the Effective Date and each of the Issuer and the Subsidiary
Guarantor shall have complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or prior to
the Effective Date.
(d) Holder shall have received on the Effective Date a
certificate, dated the Effective Date and signed by an officer of the Issuer, to
the effect that the representations and warranties of the Issuer and the
Subsidiary Guarantor contained in this Amendment are true and correct as of the
Effective Date and that each of the Issuer and the Subsidiary Guarantor has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Effective Date. The
Issuer's officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(e) Holder shall have received on or before the Effective
Date the following documents:
(i) counterparts hereof signed by each of the
parties listed on the signature pages hereof (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by Holder in
form satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party);
(ii) copies of the certificate of incorporation
or articles of incorporation, as applicable, of each of the Issuer and the
Subsidiary Guarantor and certified to be true and complete as of a recent date
by the appropriate governmental authority of the state of its incorporation;
(iii) copies of the bylaws or code of regulations,
as applicable, of each of the Issuer and the Subsidiary Guarantor, certified by
an officer of the Issuer or the Subsidiary Guarantor, as applicable, as of the
Effective Date to be true and correct and in full force and effect as of the
Effective Date;
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(iv) copies of resolutions of the board of
directors of each of the Issuer and the Subsidiary Guarantor approving and
adopting this Amendment, the Indenture Amendment, the Replacement Notes, the
transactions contemplated therein and authorizing execution and delivery
thereof, certified by an officer of the Issuer or the Subsidiary Guarantor, as
applicable, as of the Effective Date to be true and correct and in full force
and effect as of the Effective Date;
(v) copies of (A) certificates of good standing,
existence or its equivalent with respect to each of the Issuer and the
Subsidiary Guarantor certified as of a recent date by the appropriate
governmental authorities of the state of its incorporation;
(vi) an incumbency certificate of each of the
Issuer and the Subsidiary Guarantor certified by a secretary or assistant
secretary of each such entity to be true and correct as of the Effective Date;
and
(vii) all documents that Holder may reasonably
request relating to the existence of the Issuer and the Subsidiary Guarantor,
the corporate authority for and the validity of this Agreement, the Indenture
Amendment, the Replacement Notes, and any other matters relevant hereto, all in
form and substance satisfactory to Holder in its sole good faith discretion.
(f) Holder shall have determined in its sole discretion
that the terms of the Indenture Amendment and the Replacement Notes satisfy the
criteria for a Qualifying Collateral Debt Asset as defined under the CVC Capital
Indenture.
(g) Holder shall have received payment in full in
immediately available funds of all reasonable expenses (including attorney's
fees) incurred in connection with the negotiation and execution of this
Amendment and all other documents, instruments and agreements executed and/or
delivered in connection herewith.
(h) Holder shall have received such other documents and
certificates as are reasonably requested by Holder or its counsel.
4. Effect on Purchase Agreement.
(a) Except as provided in Section 1 above or as otherwise
expressly contemplated hereby, the Purchase Agreement, the Indenture and the
Securities shall remain in full force and effect and this Amendment shall not by
implication or otherwise (i) alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Purchase Agreement, the Indenture or the Securities, all of which are hereby
ratified and affirmed in all respects and shall continue in full force and
effect, (ii) constitute a waiver by Holder of compliance by the Issuer with any
term, provision or condition of the Purchase Agreement or any other instrument
or agreement referred to therein or in the Indenture or the Securities or (iii)
prejudice any right or remedy that Holder may now or in the future have under or
in connection with the Purchase Agreement, the Indenture or the Securities.
(b) Upon the effectiveness of this Amendment, on and
after the Effective Date, each reference in the Purchase Agreement, the
Indenture or the Securities (including any reference therein to "this Purchase
Agreement," "hereunder," "hereof," "herein" or words of like import referring
thereto) shall mean and be a reference to the Purchase Agreement as modified
hereby.
5. Miscellaneous.
(a) Subsidiary Guarantor. The Subsidiary Guarantor hereby
acknowledges that it has read this Amendment and consents to the terms hereof
and further hereby confirms and agrees that,
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notwithstanding the effectiveness of this Amendment, the obligations of the
Subsidiary Guarantor under its guaranty under the Purchase Agreement, the
Indenture and the Securities shall not be impaired or affected and each such
guaranty is, and shall continue to be, in full force and effect and is hereby
notified and confirmed in all respects.
(b) Notices. Any notice required or permitted pursuant to
this Amendment shall be delivered in accordance with the provisions of Section
12 of the Purchase Agreement; provided, that any notice to Holder shall be so
mailed, delivered or sent to: CVC Capital Funding, LLC, 399 Park Avenue, 14th
Floor, New York, NY 10043 Attention: Byron L. Knief.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PROVISION THEREOF).
(d) Headings. The section and other headings contained in
this Amendment are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Amendment.
(e) Severability. If any term, provision or covenant of
this Amendment is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions and covenants of this
Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
(f) Amendment and Waiver. No amendment of any provision
of this Amendment shall be effective, unless the same shall be undertaken and
consummated in accordance with the terms of Section 16 of the Purchase
Agreement.
(g) Counterparts. This Amendment and any amendments,
waivers, consents or supplements may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ERICO INTERNATIONAL CORPORATION
By: /s/ William H. Roj
----------------------------------------
Name: William H. Roj
Title: President
ERICO PRODUCTS, INC.,
as Guarantor
By: /s/ Peter B. Korte
----------------------------------------
Name: Peter B. Korte
Title: General Counsel and Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
CVC CAPITAL FUNDING, LLC
By: /s/ Byron L. Knief
--------------------------
Name: Byron L. Knief
Title: President
EXHIBIT A
FORM OF AMENDMENT TO INDENTURE
OMITTED
EXHIBIT B
FORM OF REPLACEMENT NOTE
OMIITTED