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Exhibit (4)(c)
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SECOND AMENDMENT
TO
CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Amendment"), dated as
of May 31 , 1996, is entered into by and among SUDBURY, INC. (Borrower),
NATIONAL CITY BANK and STAR BANK, NATIONAL ASSOCIATION (together "Banks") and
NATIONAL CITY BANK in its capacity as agent of the banks ("NCB-Agent") for the
purposes of the Credit Agreement referred to below and the Related Writings.
WITNESSETH:
WHEREAS, the parties have entered into a Credit Agreement dated May 30,
1995, as amended by a certain Amendment dated as of August 30, 1995 (as amended,
the "Credit Agreement"; all terms used in the Credit Agreement being used herein
with the same meaning), which sets forth the terms and conditions upon which
Borrower may obtain Revolving Loans and Subject LCs from time to time; and
WHEREAS, the parties desire to amend the fixed asset negative covenant
contained in the Credit Agreement; and
WHEREAS, the parties also wish to evidence the agreement of Borrower to
pay to NCB-Agent a $1,000 documentation fee in consideration of NCB-Agent's
preparation of this Amendment; and
NOW, THEREFORE, in consideration of the premises above and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
SECTION I - AMENDMENT TO CREDIT AGREEMENT
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Subsection 3D.05 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"3D.05 FIXED ASSETS -- The Companies, viewed on a consolidated basis,
will not invest (net after trade-ins, if any) in fixed assets and
leasehold improvements (in each case, excluding capitalized interest)
more than Twenty-Four Million and 00/100 Dollars ($24,000,000) during
the fiscal year ending May 31, 1996 or more than Twenty Million and
00/100 Dollars ($20,000,000) during any fiscal year thereafter."
SECTION II - CONDITIONS PRECEDENT
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It is a condition precedent to the effectiveness of this Amendment
that, prior to or on the date hereof; the following items shall have been
delivered to NCB-Agent (in form and substance acceptable to NCB-Agent):
(A) an Acknowledgment of Receipt of a copy of and Consent and
Agreement to the terms of, this Amendment by each Company (other than
Borrower) with respect to a certain Continuing Guaranty of Payment
executed and delivered to NCB-Agent by such entities and dated May 30,
1995;
(B) a Certificate, dated as of the date hereof, of the secretary of
Borrower certifying (1) that Borrower's Certificate of Incorporation
and By-Laws have not been amended since the execution of
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the Credit Agreement (or certifying that true, correct and complete
copies of any amendments are attached), (2) that copies of resolutions
of the Board of Directors of Borrower are attached with respect to the
approval of this Amendment and of the matters contemplated hereby and
authorizing the execution, delivery and performance by Borrower of this
Amendment and (3) as to the incumbency and signatures of the officers
of Borrower signing this Amendment;
(C) a non-refundable documentation fee to NCB-Agent (for its own
account) in the amount of $1,000 in consideration of NCB-Agent's
preparation of this Amendment; and
(D) Such other documents as NCB-Agent may request to implement this
Amendment and the transactions contemplated hereby.
If NCB-Agent or Banks shall consummate the transactions contemplated hereby
prior to the fulfillment of any of the conditions precedent set forth above, the
consummation of such transactions shall constitute only an extension of time for
the fulfillment of such conditions and not a waiver thereof.
SECTION III - REPRESENTATIONS AND WARRANTIES
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Borrower hereby represents and warrants to each of the other parties to
this Amendment that
(A) none of the representations and warranties made in the Credit
Agreement has ceased to be true and complete in any material respect as
of the date hereof; and
(B) as of the date hereof no "Default Under This Agreement" has
occurred and is continuing.
SECTION IV - ACKNOWLEDGMENTS CONCERNING OUTSTANDING LOANS
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Borrower acknowledges and agrees that, as of the date hereof; all of
Borrower's outstanding loan obligations to Banks are owed without any offset,
deduction, defense, claim or counterclaim of any nature whatsoever.
SECTION V - REFERENCES
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On and after the effective date of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof', or words of
like import referring to the Credit Agreement, and each reference in the
Revolving Notes or other Related Writings to the "Credit Agreement", "thereof',
or words of like import referring to the Credit Agreement shall mean and refer
to the Credit Agreement as previously amended and as amended hereby. The Credit
Agreement, as previously amended and as amended by this Amendment, is and shall
continue to be in full force and effect and is hereby ratified and confirmed in
all respects. The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of NCB-Agent or Banks
under the Credit Agreement or constitute a waiver of any provision of the Credit
Agreement except as specifically set forth herein.
SECTION VI - COUNTERPARTS AND GOVERNING LAW
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This Amendment may be executed in any number of counterparts, each
counterpart to be executed by one or more of the parties but, when taken
together, all counterparts shall constitute one agreement. This Amendment, and
the respective rights and obligations of the parties hereto, shall be construed
in accordance with and governed by Ohio law.
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IN WITNESS WHEREOF, the Borrower, NCB-Agent and the banks have caused
this Amendment to be executed by their authorized officers as of the date and
year first above written.
NATIONAL CITY BANK, AGENT SUDBURY, INC.
By: /s/ Diane I. Rooney By: /s/ Mark E. Brody
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Printed Name: Diane I. Rooney Printed Name: Mark E. Brody
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Title: Vice President Title: Vice President
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NATIONAL CITY BANK
By: /s/ Diane I. Rooney And By: /s/ Jacques Sardas
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Printed Name: Diane I. Rooney Printed Name: Jacques Sardas
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Title: Vice President Title: President & CEO
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STAR BANK, NATIONAL ASSOCIATION
By: /s/ John D. Barret
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Printed Name: John Barrett
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Title: Vice President
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ACKNOWLEDGMENT, CONSENT AND AGREEMENT
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WITH RESPECT TO GUARANTY
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The undersigned hereby acknowledge receipt of a copy of a certain
Second Amendment to Credit Agreement (the "Amendment"), dated as of May 31,
1996, and entered into by and among Sudbury, Inc. ("Borrower"), National
City Bank and Star Bank, National Association (collectively the "Banks") and
National City Bank in its capacity as agent of the Banks ("NCB-Agent"). By
executing this Acknowledgment, Consent and Agreement, the undersigned agree to
remain bound by the terms and conditions of that certain Continuing Guaranty of
Payment executed and delivered to NCB-Agent by the undersigned and dated as of
May 30, 1995 (the "Guaranty"). The Guaranty was executed in connection with a
certain Credit Agreement by and among Borrower, Banks and NCB-Agent, which
Credit Agreement has been previously modified and is now being amended by the
Amendment. The undersigned further acknowledge that the liability of the
undersigned pursuant to the Guaranty shall continue and be unaffected by the
Amendment and shall extend, without limitation, to any and all obligations of
Borrower in connection with the matters referred to in the Amendment. The
undersigned expressly consent to Borrower's execution of the Amendment and agree
that Banks and NCB-Agent may rely on this Acknowledgment, Consent and Agreement
in modifying the financial accommodations to Borrower as contemplated and
evidenced by such document.
Address: 2800 Yasdick Drive CAST-MATIC CORPORATION
P.O. Box 251
Stevensville, MI 49127
Telecopy: (616) 429-1630 By: /s/ Mark E. Brody
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Printed Name: Mark E. Brody
Title: Vice President & Treasurer
Date: May 31, 1996
Address: 1500 Chase Avenue FRISBY P.M.C., INCORPORATED
Elk Grove Village, IL 60007
Telecopy: (708) 439-6463
By: /s/ Mark E. Brody
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Printed Name: Mark E. Brody
Title: Vice President & Treasurer
Date: May 31, 1996
Address: 202 Republic Street INDUSTRIAL POWDER COATINGS, INC.
P.O. Box 837
Norwalk, OH 44857
Telecopy: (419) 663-4206 By: /s/ Mark E. Brody
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Printed Name: Mark E. Brody
Title: Vice President & Treasurer
Date: May 31, 1996
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Address: 500 Highway 18 West IOWA MOLD TOOLING CO., INC.
Garner, IA 50438
Telecopy: (515) 923-2424
By: /s/ Mark E. Brody
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Printed Name: Mark E. Brody
Title: Vice President & Treasurer
Date: May 31, 1996
Address: 825 North Lowber Street WAGNER CASTINGS COMPANY
P.O. Box 1319
Decatur, IL 62525
Telecopy: (217)425-6662 By: /s/ Mark E. Brody
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Printed Name: Mark E. Brody
Title: Vice President & Treasurer
Date: May 31, 1996
Address: 227 Wagner Avenue WAGNER HAVANA, INC.
Box 469
Havana, IL 62644
Telecopy: (309) 543-4499 By: /s/ Mark E. Brody
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Printed Name: Mark E. Brody
Title: Vice President & Treasurer
Date: May 31, 1996