EXHIBIT 10(a)
THE ▇▇▇▇▇▇ & SESSIONS CO.
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to the Amended and Restated Credit Agreement
(herein, the "Amendment") is entered into as of September 30, 2002, among The
▇▇▇▇▇▇ & Sessions Co., an Ohio corporation (the "Borrower"), the Guarantors
party hereto, the Lenders party hereto, and ▇▇▇▇▇▇ Trust and Savings Bank, as
Administrative Agent for the Lenders.
PRELIMINARY STATEMENTS
A. The Borrower, the Guarantors, the Lenders and the Administrative
Agent are parties to an Amended and Restated Credit Agreement dated as of
December 15, 2000 (the Amended and Restated Credit Agreement, as the same has
been amended prior to the date hereof, being referred to herein as the "Credit
Agreement"). All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the term loan fee payable under
Section 2.1(d) and the increase in the Applicable Margin for the Term Loans
which were scheduled to become effective on September 30, 2002, be deferred
until December 31, 2002, and the Lenders are willing to do so under the terms
and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS.
Subject to the satisfaction of the conditions precedent set forth in
Section 2 below, effective as of the effective date of this Amendment, the
Credit Agreement shall be and hereby is amended as follows:
1.1. Section 2.1(d) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
(d) Term Loan Fee. The Borrower agrees that if the
Term Loans are not paid in full on or before December 31,
2002, it shall pay to the Administrative Agent for
distribution to the Lenders in accordance with their pro rata
shares of the outstanding Term Loans a fee in an amount equal
to 1.125% multiplied by the principal balance of the Term
Loans outstanding as of December 31, 2002 (computed without
giving effect to any scheduled amortization payment of the
Term Loans due on that
date), which fee shall be paid on the Business Day immediately
following such date; provided that in the event the Borrower's
Board of Directors affirmatively directs its management to
discontinue the solicitation of interests for the issuance of
subordinated debt described in Section 1.3 of the Fourth
Amendment to this Agreement, the Borrower hereby agrees to pay
the term loan fee called for hereby on the Business Day
immediately following the date of such action (with the term
loan fee to be computed on the principal balance of the Term
Loans outstanding as of such date).
1.2. The last sentence of the definition of "Applicable Margin"
appearing in Section 5.1 of the Credit Agreement shall be amended and restated
to read as follows:
In the event the Term Loans are not paid in full on or before
December 31, 2002, the Applicable Margins with respect to the
Term Loans shall increase effective on January 1, 2003, by
1.0% per annum over the Applicable Margins set forth above
and, in addition, there shall be additional interest of 1% per
annum due and payable by the Borrower, computed retroactive
for the period from September 30, 2002, through and including
December 31, 2002, with respect to the principal balance of
the Term Loans outstanding as of December 31, 2002 (computed
without giving effect to any scheduled amortization payment of
the Term Loans due on that date), which additional interest
shall be paid on the Business Day immediately following such
date.
1.3. The Borrower has advised the Lenders that it has engaged Brown,
Gibbons, Lang & Company, L.P., for the purpose of soliciting interest for the
issuance of additional debt of the Borrower (which is to be contractually
subordinated to the prior payment in full of the Obligations) to potential
purchasers. The Borrower acknowledges that the issuance of any such subordinated
debt, and the terms and conditions thereof, is subject to the terms and
conditions of the Credit Agreement, including Sections 8.7 and 13.14 thereof.
Until the issuance of any such subordinated debt, on bi-monthly basis by no
later than the 15th and last day of each calendar month, the Borrower hereby
agrees to provide to the Administrative Agent and the Lenders a status report
on its efforts to raise such subordinated indebtedness, including (a) prior to
approval by the Board of Directors of the Borrower of any such transaction, an
update of the Summary of Market Process in substantially the same form and
detail heretofore delivered by the Borrower to the Administrative Agent and the
Lenders and (b) after approval by the Board of Directors of the Borrower of any
such transaction, copies of any commitment letters and/or term sheets under
discussion between the Borrower and any such potential purchaser, in each case
together with such other information as the Administrative Agent may reasonably
request.
1.4. Section 8.7 of the Credit Agreement shall be amended by striking
the period appearing at the end of subsection (g) and inserting in its place a
semicolon followed by the word
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"and", and then adding at the end of Section 8.7 as so amended a new subsection
(h) which shall read as follows:
(h) indebtedness in the form of a mortgage loan on
its executive and administrative office located at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ incurred by the Borrower
prior to December 31, 2002, in an aggregate amount not
exceeding the then fair market value of such Property,
provided that the proceeds of such loan (net of any amounts
necessary to retire the mortgage loan owing to AEGON USA
Realty Advisors, Inc. referred to on Schedule 8.7/8.8 hereof)
are applied as a mandatory prepayment of the Term Loans (if
any) then outstanding (applied in accordance with Section
1.10(c) hereof).
SECTION 2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent (at which time this Amendment shall be
deemed effective retroactive to September 30, 2002):
2.1. The Borrower, the Administrative Agent, and the Lenders shall have
executed and delivered this Amendment.
2.2. The Guarantors shall have executed and delivered to the
Administrative Agent their consent to this Amendment in the space provided
below.
2.3. The Borrower shall have paid to the Administrative Agent, for
distribution to the Lenders holding the Term Loans in accordance with their Term
Loan Percentages, a fee of $56,875 (representing a fee of 0.175% on the
outstanding principal balance of the Term Loans after giving effect to the
September 30, 2002, scheduled principal payment thereon).
2.4. Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Administrative Agent and its counsel.
SECTION 3. REPRESENTATIONS.
In order to induce the Lenders to execute and deliver this Amendment,
the Borrower hereby represents to the Lenders that as of the date hereof, and
after giving effect to the amendments provided for in this Amendment, (a) the
representations and warranties set forth in Section 6 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 6.5 shall be deemed to refer to the most recent financial
statements of the Borrower delivered to the Lenders) and (b) the Borrower is in
compliance with the terms and conditions of the Credit Agreement and no Default
or Event of Default has occurred and is continuing under the Credit Agreement or
shall result after giving effect to this Amendment.
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SECTION 4. MISCELLANEOUS.
4.1. The Borrower and the Guarantors have heretofore or concurrently
herewith executed and delivered to the Lenders the Mortgages, the Security
Agreement, the Pledge Agreement, and certain other Collateral Documents. The
Borrower and, by signing below, the Guarantors, hereby acknowledge and agree
that the Liens created and provided for by the Collateral Documents continue to
secure, among other things, the Obligations arising under the Credit Agreement
as amended hereby; and the Collateral Documents and the rights and remedies of
the Lenders thereunder, the obligations of the Borrower and the Guarantors
thereunder, and the Liens created and provided for thereunder remain in full
force and effect and shall not be affected, impaired or discharged hereby.
Nothing herein contained shall in any manner affect or impair the priority of
the liens and security interests created and provided for by the Collateral
Documents as to the indebtedness which would be secured thereby prior to giving
effect to this Amendment.
4.2. Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the Notes, or any other instrument or document executed in connection therewith,
or in any certificate, letter or communication issued or made pursuant to or
with respect to the Credit Agreement, any reference in any of such items to the
Credit Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
4.3. The Borrower agrees to pay on demand all reasonable costs and
expenses incurred by the Administrative Agent in connection with the
negotiation, preparation, execution and delivery of this Amendment, including
the reasonable fees and expenses of counsel for the Administrative Agent.
4.4. This Amendment may be executed in any number of counterparts, and
by the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of Illinois.
[SIGNATURE PAGE TO FOLLOW]
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This Fourth Amendment to Amended and Restated Credit Agreement is
entered into as of the date and year first above written.
"BORROWER"
THE ▇▇▇▇▇▇ & SESSIONS CO.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇
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Title Executive VP & CFO
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"GUARANTORS"
▇▇▇▇▇▇ CHIMES CO.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇
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Title Vice President, Secretary & Treasurer
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DIMANGO PRODUCTS CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇
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Title Secretary
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PYRAMID INDUSTRIES II, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇
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Title Vice President & Treasurer
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"LENDERS"
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, in its
individual capacity as a Lender and as
Administrative Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title Managing Director
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BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title Senior Vice President
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NATIONAL CITY BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title Senior Vice President
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PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇. Land
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Name ▇▇▇▇ ▇. Land
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Title Vice President
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GE CAPITAL CFE, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title Duly Authorized Signatory
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BANK ONE, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇
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Title First Vice President
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THE HUNTINGTON NATIONAL BANK
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title Senior Vice President
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FIFTH THIRD BANK (NORTHEASTERN OHIO)
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Name ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title Vice President
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KEYBANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title Vice President
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LASALLE BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title Vice President
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