1
Exhibit 10(r)(4)8
FIFTH AMENDMENT
TO
CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement (this "Amendment"), dated as
of January 28, 1998, is entered into by and among LESCO, INC., an Ohio
corporation ("Borrower"), NATIONAL CITY BANK, NBD BANK, and PNC BANK, NATIONAL
ASSOCIATION (together the "Banks") and NATIONAL CITY BANK IN ITS CAPACITY AS
AGENT of the Banks ("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 originally
dated as of September 30, 1994 (as amended from time to time, 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 Banks have
advanced term loans to Borrower and upon which Borrower may obtain revolving
loans from time to time; and
WHEREAS, the parties desire to amend the Credit Agreement to allow for
the acquisition by Borrower of specific assets and the assumption of specified
liabilities of Agriturf, Inc. (including certain related entities such as Rumer,
Inc. and Merle and Ruth Taylor) and the acquisition by Borrower of specific
assets of Cadwell and Jones, Inc.;
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
-----------------------------
Subsection 3D.01 of the Credit Agreement is hereby amended to add the
following clause (v) to the end of the proviso thereto:
"(v) the purchase of specific assets and the assumption of specified
liabilities of Agriturf, Inc. (including certain related entities such
as Rumer, Inc. and Merle and Ruth Taylor) and the purchase of specific
assets of Cadwell and Jones, Inc. for an aggregate purchase price of
approximately $8,700,000, approximately $2,700,000 of which takes the
form of assumed liabilities; all of such transactions shall be
completed in all material respects in accordance with the agreements,
summaries and other information provided by Borrower to Bank in regard
thereto."
SECTION II - CONDITIONS PRECEDENT
--------------------
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 Agent (in form and substance acceptable to Agent):
(A) a Certificate, dated as of the date hereof, of the secretary of
Borrower certifying (1) that Borrower's Articles of Incorporation and
Code of Regulations have not been amended since the execution of 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 which are broad enough to,
in the reasonable opinion of Bank, cover the approval of this Amendment
and the matters contemplated hereby and authorizing the execution,
delivery and
2
performance by Borrower of this Amendment and (3) as to the incumbency
and signatures of the officers of Borrower signing this Amendment; and
(B) Such other documents as Agent may request to implement this
Amendment and the transactions contemplated hereby.
If 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
------------------------------
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 that is continuing.
SECTION IV - ACKNOWLEDGMENTS CONCERNING OUTSTANDING LOANS
--------------------------------------------
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. Borrower
authorizes each Bank to share all credit and financial information relating to
Borrower with such Bank's parent company and with any subsidiary or affiliate
company of such Bank or of such Bank's parent company.
SECTION V - REFERENCES
----------
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 Subject
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 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
------------------------------
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.
3
IN WITNESS WHEREOF, the Borrower, Agent and the Banks have caused this
Amendment to be executed by their authorized officers as of the date and year
first above written.
Address: LESCO, INC.
20005 Lake Road
Rocky River, Ohio 44116 By: /s/ Kenneth W. Didion
-------------------------------
Printed Name: Kenneth w. Didion
----------------------
Title: Treasurer
----------------------------
Address: NATIONAL CITY BANK, AGENT
1900 East Ninth Street
Attn: Multinational Division By: /s/ Terri L. Cable
-------------------------------
Cleveland, Ohio 44114-3484 Printed Name: Terri L. Cable
Title: Vice President
Address: NATIONAL CITY BANK
1900 East Ninth Street
Attn: Multinational Division By: /s/ Terri L. Cable
-------------------------------
Cleveland, Ohio 44114-3484 Printed Name: Terri L. Cable
Title: Vice President
Address: PNC BANK, NATIONAL ASSOCIATION
1375 East Ninth Street
Suite 1250 By: /s/ David Williams
-------------------------------
Cleveland, Ohio 44114-3103 Printed Name: David Williams
Title: Vice President
Address: NBD BANK
611 Woodward Avenue
Detroit, Michigan 48226 By: /s/ Paul DeMelo
-------------------------------
Printed Name: Paul DeMelo
Title: Vice President