EXHIBIT 10.1
AMENDMENT NO.1 TO LOAN AGREEMENT
This Amendment ("Amendment") dated as of August 22, 1997, is made and
entered into by and among SunTrust Bank, Central Florida, National Association,
having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
(hereinafter referred to as "Bank"), and Consolidated Stainless, Inc., a
Delaware corporation ("CSI"), of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, (hereinafter referred to as "Borrower").
WHEREAS the Bank, the Borrower, and Flow Components, Inc. have entered into
a Loan Agreement ("Loan Agreement") dated as of January 22, 1996, whereby the
Bank has provided financing for certain items of equipment, and;
WHEREAS on April 22, 1996 Flow Components, Inc. ("FCI") merged into
Borrower, such that FCI no longer exists as a separate legal entity, and;
WHEREAS Borrower has entered into a loan agreement with Mellon Bank, N.A.,
replacing SunTrust Bank, Central Florida, N.A. as its primary bank, and;
WHEREAS the Bank and the Borrower desire to amend the Loan Agreement to
incorporate certain financial covenants;
Now, therefore, in consideration of the mutual covenants and conditions set
forth herein, the Bank and the Borrower hereby agree as follows:
1. AMENDMENT. The Loan Agreement is hereby amended by adding the contents
of Exhibit A attached hereto as section 8 thereto.
2. PROJECTIONS. Within thirty (30) days after the closing of any sale of
the Components Division, Borrower shall deliver to Bank revised projections
prepared in accordance with the provisions of SECTION 9.2 of the Mellon Bank
Loan Agreement and giving effect to such sale. Upon its receipt and review of
the revised projections, Bank may, in the exercise of its reasonable discretion,
require revisions to the financial covenants set forth in SECTION 8 of the Loan
Agreement. Nothing contained herein shall obligate Bank to make any
modification of the financial covenants.
3. CLOSING CONDITIONS. The effectiveness of this Amendment and the
Bank's obligations hereunder are expressly conditioned upon the execution and
delivery to Bank and compliance with each of the following by Borrower:
(A) Corporate resolutions of the directors of the Borrower
authorizing the execution and delivery by Borrower of this Amendment and all
documents required to be delivered by Borrower hereunder and thereunder.
(B) Any agreements, modification and/or amendments of the
documentation evidencing the Subordinated Indebtedness (as such term is defined
in the Mellon Bank Loan Agreement) necessary to (i) demonstrate any required
consent of the holders of the Subordinated Indebtedness to the terms and
conditions of this Amendment and (ii) modify the terms and conditions of such
documentation to cause Borrower's compliance with all the terms and conditions
thereof.
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(C) Any other agreements, instruments, and/or documents Bank may
reasonably request.
4. OTHER REFERENCES. All references in the Loan Agreement and all the
Loan Documents to the term "LOAN DOCUMENTS" shall mean the Loan Documents as
defined therein, and this Amendment, and any and all other documents executed
and delivered by Borrower pursuant to and in connection herewith.
5. FURTHER AGREEMENTS AND REPRESENTATIONS. Borrower hereby:
(A) Ratifies, confirms and acknowledges that the Loan Agreement, as
amended hereby, and the Loan Documents continue to be valid, binding and in full
force and effect;
(B) Renews, confirms and continues all liens, security interests,
rights and remedies granted to the Bank in the Loan Documents, which liens,
security interests, rights and remedies shall also secure the performance by
Borrower of its obligations hereunder and under the Loan Documents;
(C) Covenants and agrees to perform all of its obligations under the
Loan Agreement, as amended hereby, and the Loan Documents;
(D) Acknowledges and agrees that as of the date hereof, Borrower has
no defense, set-off, counterclaim or challenge against the payment of any sums
under the Loan Agreement or the enforcement of any of the terms of the Loan
Agreement, as amended hereby, or any of the other Loan Documents;
(E) Ratifies and confirms that all representations and warranties of
the Borrower, contained in the Loan Agreement and/or the other Loan Documents,
are true and complete on and as of the date hereof, as if made on and as of the
date hereof.
(F) Represents and warrants that the execution and delivery of this
Amendment by Borrower and all documents and agreements to be executed and
delivered pursuant to the terms hereof;
(I) have been duly authorized by all requisite corporate action by
Borrower;
(II) will not conflict with or result in the breach of or
constitute a default (upon the passage of time, delivery of notice or both)
under Borrower's Certificate of Incorporation or By-Laws or any applicable
statute, law, rule, regulation or ordinance or any indenture, mortgage, loan or
other document or agreement to which Borrower is a party or by which it is bound
or affected; and
(III) will not result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of Borrower, except liens in favor of the Bank or as permitted hereunder
or under the Loan Documents;
(G) Represents and warrants that, after giving effect to this
Amendment, no Event of Default or event, which with the giving of notice,
passage of time or both, would constitute an Event of Default exists and all of
the information described in the foregoing Background is accurate and complete;
and
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(H) Acknowledges and agrees that Borrower's failure to comply with or
perform any of its covenants, agreements or obligations contained in this
Amendment or any other documents executed and delivered by Borrower in
connection herewith will, subject to applicable notice, grace and cure periods,
constitute an Event of Default under the Loan Agreement and each of the Loan
Documents.
6. NO NOVATION. Nothing contained herein and no actions taken pursuant to
the terms hereof are intended to constitute a novation of the Loan Agreement or
any of the Loan Documents and shall not constitute a release, termination or
waiver of any of the liens, security interests, rights or remedies granted to
Bank in the Loan Documents, which liens, security interests, rights or remedies
are hereby ratified, confirmed, extended and continued as security for all Bank
Indebtedness.
7. NO WAIVER. Nothing contained herein constitutes an agreement or
obligation by Bank to grant any further amendments to any of the Loan Documents.
Nothing contained herein constitutes a waiver or release by Bank of any rights
or remedies available to Bank under the Loan Documents, at law or in equity,
except as expressly provided herein.
8. INCONSISTENCIES. To the extent of any inconsistency between the
terms and conditions of, this Amendment and the terms, conditions of the Loan
Agremeent or the Loan Documents, the terms and conditions of this Amendment
shall prevail. All terms and conditions of the Loan Agreement and the Loan
Documents not inconsistent herewith shall remain in full force and effect,
and are hereby ratified and confirmed by Borrower.
9. CONSTRUCTION. All references to the Loan Agreement therein or in any
of the other Loan Documents shall be deemed to be a reference to the Loan
Agreement, as amended hereby.
10. BINDING EFFECT. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
11. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Florida.
12. HEADINGS. The headings of the sections of this Amendment are inserted
for convenience only and shall not be deemed to constitute a part of this
Amendment.
13. ACKNOWLEDGMENT OF CONFESSION OF JUDGMENT PROVISIONS. BORROWER
ACKNOWLEDGES AND AGREES THAT THE NOTE AND THE LOAN DOCUMENTS CONTAIN PROVISIONS
WHEREBY BANK MAY ENTER JUDGMENT BY CONFESSION AGAINST BORROWER. BEING FULLY
AWARE OF ITS RIGHTS TO PRIOR NOTICE AND HEARING ON THE QUESTION OF THE VALIDITY
OF ANY CLAIMS THAT MAY BE ASSERTED AGAINST IT BY BANK UNDER THE NOTES AND LOAN
DOCUMENTS, BEFORE JUDGMENT CAN BE ENTERED, BORROWER HEREBY WAIVES THESE RIGHTS
AND AGREES AND CONSENTS TO BANK ENTERING JUDGMENT AGAINST BORROWER BY CONFESSION
AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT. ANY
PROVISION IN A CONFESSION OF JUDGMENT IN ANY OF THE LOAN DOCUMENTS FOR AN
ATTORNEY'S COLLECTION COMMISSION SHALL IN NO WAY LIMIT BORROWERS'S LIABILITY TO
REIMBURCE BANK FOR ALL LEGAL FEES ACTUALLY INCURRED BY BANK, EVEN IF SUCH FEES
ARE IN EXCESS OF THE ATTORNEY'S COLLECTION COMMISSION PROVIDED FOR IN SUCH
CONFESSION OF JUDGMENT.
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14. WAIVER OF RIGHT TO TRIAL BY JURY. BORROWER AND BANK WAIVE ANY RIGHT TO
TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER
ANY OF THE LOAN DOCUMENTS OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF BORROWER OR BANK WITH RESPECT TO ANY OF THE LOAN
DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE. BORROWER AND BANK AGREE AND CONSENT
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT BORROWER OR BANK MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
BORROWER AND BANK TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. BORROWER
ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING
THIS SECTION, THAT IT FULLY UNDERSTANDS ITS TERMS, CONTENT AND EFFECT, AND THAT
IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS OF THIS SECTION.
In witness whereof, the parties hereto have each executed this Amendment
this 18th day of September, 1997, with the provisions hereof effective as of
January 1, 1997.
Bank: Borrower:
SunTrust Bank, Central Florida, N.A. Consolidated Stainless, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
First Vice President President
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EXHIBIT A
TO AMENDMENT NO. 1 TO LOAN AGREEMENT
8. FINANCIAL COVENANTS. As follows:
8.1 FINANCIAL COVENANTS. Except with the prior written consent of Bank,
Borrower will comply with the following:
(A) NET INCOME. Borrower shall have Net Income (as measured quarterly on
a fiscal year-to-date basis) of not less than (i) Five Hundred Thousand
Dollars ($500,000.00) as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) One Million Dollars
($1,000,000.00) as of June 30, 1998, (iii) One Million Five Hundred
Thousand Dollars ($1,500,000.00) as of September 30, 1998, (iv) Two Million
Dollars ($2,000,000.00) as of December 31, 1998, (v) Five Hundred Thousand
Dollars ($500,000.00) as of March 31, 1999, (vi) One Million Dollars
($1,000,000.00) as of June 30, 1999, (vii) One Million Five Hundred
Thousand Dollars ($1,500,000.00) as of September 30, 1999, (viii) Two
Million Dollars ($2,000,000.00) as of December 31, 1999, (ix) Five Hundred
Thousand Dollars ($500,000.00) as of March 31, 2000, (x) One Million
Dollars ($1,000,000.00) as of June 30, 2000, (xi) One Million Five Hundred
Thousand Dollars ($1,500,000.00) as of September 30, 2000, and (xii) Two
Million Dollars ($2,000,000.00) as of December 31, 2000. In addition,
commencing with the Borrower's fiscal quarter ending March 31, 1998,
Borrower shall have Net Income of not less than One Hundred Fifty Thousand
Dollars ($150,000.00) for each fiscal quarter.
(B) NET LOSS. Borrower shall have a Net Loss (as measured quarterly on a
fiscal year to date basis) of not more than (i) Two Million Nine Hundred
Eleven Thousand Dollars ($2,911,000.00) as of December 31, 1996, (ii) Seven
Hundred Seventy-Eight Thousand Dollars ($778,000.00) as of ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇▇) One Million Four Hundred Thirty-Six Thousand Dollars ($1,436,000.00)
as of June 30, 1997, (iv) One Million Three Hundred Twenty Six Thousand
Dollars ($1,326,000.00) as of September 30, 1997, and (v) Nine Hundred
Ninety-Seven Thousand Dollars ($997,000.00) as of December 31, 1997.
(C) NET OPERATING LOSS. Borrower's Net Operating Loss for the twelve (12)
month period ended December 31, 1996 shall not be greater than One Million
Five Hundred Two Thousand Dollars ($1,502,000.00).
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(D) EFFECTIVE NET WORTH. Borrower shall have Effective Net Worth of not
less than:
MONTH ENDING EFFECTIVE NET WORTH(IN DOLLARS)
12/31/96 8,353,000
3/31/97 8,093,000
6/30/97 7,415,000
7/31/97 7,397,000
8/31/97 7,473,000
9/30/97 7,619,000
10/31/97 7,777,000
11/30/97 7,933,000
12/31/97 8,072,000
1/31/98 8,277,000
2/28/98 8,482,000
3/31/98 8,686,000
4/30/98 8,891,000
5/31/98 9,096,000
6/30/98 9,300,000
7/31/98 9,505,000
8/31/98 9,710,000
9/30/98 9,914,000
10/31/98 10,119,000
11/30/98 10,324,000
12/31/98 10,528,000
1/31/99 10,711,000
2/28/99 10,894,000
3/31/99 11,076,000
4/30/99 11,259,000
5/31/99 11,442,000
6/30/99 11,624,000
7/31/99 11,807,000
8/31/99 11,990,000
9/30/99 12,172,000
10/31/99 12,355,000
11/30/99 12,538,000
12/31/99 12,720,000
1/31/00 12,903,000
2/29/00 13,086,000
3/31/00 13,268,000
4/30/00 13,451,000
5/31/00 13,634,000
6/30/00 13,816,000
7/31/00 13,999,000
8/31/00 14,182,000
9/30/00 14,364,000
10/31/00 14,547,000
11/30/00 14,730,000
12/31/00 14,912,000
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(e) CAPITAL EXPENDITURES. Borrower shall not cause, suffer or permit to
exist Capital Expenditures in excess of (i) Five Million Four Hundred
Thousand Dollars ($5,400,000.00) for Borrower's fiscal year ended December
31, 1996, (ii) Seven Hundred Thousand Dollars ($700,000.00) for Borrower's
fiscal year ended December 31, 1997, and (iii) Five Hundred Thousand
Dollars ($500,000.00) during any fiscal year of Borrower thereafter. The
foregoing permitted Capital Expenditures shall be non-cumulative as to any
unused portions during any fiscal year and shall be measured as of the end
of each fiscal quarter.
(f) CURRENT RATIO. Borrower shall maintain a ratio of Current Assets to
Current Liabilities of not less than (i) .99 to 1.0 as of December 31,
1996, (ii) .90 to 1.0 as of the end of each month commencing with the month
ending June 30, 1997 through and including the month ending December 31,
1997, (iii) 1.0 to 1.0 as of the end of each month commencing with the
month ending January 31, 1998 through and including the month ending
December 31, 1998, (iv) 1.10 to 1.0 as of the end of each month commencing
with the month ending January 31, 1999 through and including the month
ending December 31, 1999, and (v) 1.20 to 1.0 as of the end of each month
commencing with the month ending January 31, 2000 through and including the
month ending December 31, 2000.
(g) SENIOR INDEBTEDNESS TO EFFECTIVE NET WORTH. Borrower shall maintain a
ratio of Senior Indebtedness to Effective Net Worth of not greater than (i)
4.68 to 1.0 as of December 31, 1996, (ii) 5.78 to 1.0 as of ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇▇) 6.20 to 1.0 as of June 30, 1997, (iv) 5.92 to 1.0 as of September 30,
1997, (v) 5.40 to 1.0 as of December 31, 1997, (vi) 4.06 to 1.0 as of March
31, 1998, and (vii) 4.00 to 1.0 as of June 30, 1998 and as of the end of
each fiscal quarter of Borrower thereafter.
(h) INVENTORY TURNOVER. Borrower shall maintain an Inventory Turnover
Frequency of not more than (i) one hundred ninety (190) days for the six
(6) month period ending June 30, 1997, (ii) one hundred ninety (190) days
for the nine (9) month period ending September 30, 1997, (iii) one hundred
eighty-five (185) days for the twelve (12) month period ending December 31,
1997, (iv) one hundred eighty-five (185) days for the three (3) month
period ending March 31, 1998, (v) one hundred eighty (180) days for the six
(6) month period ending June 30, 1998, (vi) one hundred seventy-five (175)
days for the nine (9) month period ending September 30, 1998, (vii) one
hundred seventy (170) days for the twelve (12) month period ending December
31, 1998, (viii) one hundred seventy (170) days for the three (3) month
period ending March 31, 1999, (ix) one hundred sixty-five (165) days for
the six (6) month period ending June 30, 1999, (x) one hundred sixty-five
(165) days for the nine (9) month period ending September 30, 1999, (xi)
one hundred sixty (160) days for the twelve (12) month period ending
December 31, 1999, (xii) one hundred sixty (160) days for the three (3)
month period ending March 31, 2000, (xiii) one hundred fifty-five (155)
days for the six (6) month period ending June 30, 2000, (xiv) one hundred
fifty-five (155) days for the nine (9) month period ending September 30,
2000, and (xv) one hundred fifty (150) days for the twelve (12) month
period ending December 31, 2000.
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(I) FIXED CHARGE COVERAGE RATIO. Borrower shall maintain a Fixed Charge
Coverage Ratio of not less than (i) 0.70 to 1.0 for the twelve (12) month
period ending December 31, 1997, (ii) 1.25 to 1.0 for the twelve (12) month
period ending December 31, 1998, (iii) 1.5 to 1.0 for the twelve (12) month
period ending December 31, 1999, and (iv) 1.5 to 1.0 for the twelve (12)
month period ending December 31, 2000."
8.2 COVENANT CERTIFICATION. Borrower shall, within 15 days of the end of
each quarter, provide the Bank with a covenant certification setting forth, for
each covenant (a) through (i), compliance or non-compliance, as the case may be.
Such certification shall include the specific financial data used in each
computation and shall use the definition of terms as to such financial data as
are set forth in the Mellon Bank loan agreement, as such definitions are amended
from time to time, which definitions are incorporated herein by reference.
CONSOLIDATED STAINLESS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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