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Exhibit 10(t)
AMENDMENT NO. 1
Dated as of October 30, 1995
THIS AMENDMENT NO. 1 ( "Amendment ) is entered into as of October 30 ,
1995 by and among THE ▇▇▇▇▇▇ & SESSIONS CO ., an Ohio corporation (the
"Borrower"), GENERAL ELECTRIC CAPITAL, CORPORATION, a New York corporation ("GE
Capital"), as the sole "Lender" (as defined in the Loan Agreement referred to
below) and GE Capital as agent for the Lenders (in such capacity, the "Agent")
PRELIMINARY STATEMENT
A. The Borrower, the Lender and the Agent are parties to that
certain Loan Agreement dated as of February 13, 1992, as amended and restated
as of July 14, 1995 (as amended from time to time, the "Loan Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Loan Agreement as amended by this Amendment.
B. The Borrower has determined that it would be advantageous to
transfer the Valley-Todeco assets to a newly created, wholly-owned subsidiary
of the Borrower.
C. The Lender and the Agent have agreed to such transfer, subject
to the terms hereof, and the Borrower, the Lender and the Agent accordingly
have agreed to amend the Loan Agreement on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt: and sufficiency of which
are hereby acknowledged, the Borrower. the Lenders and the Agent hereby agree
as follows;
SECTION 1. AMENDMENT TO THE LOAN AGREEMENT. Subject to the
satisfaction of the conditions precedent set forth in Section 7 below, the Loan
Agreement is hereby amended as follows;
1.01. SECTION 1.1 of the Loan Agreement is amended by amending and
restating the definition of ''Valley-Todeco" as follows:
"VALLEY-TODECO" shall mean Valley-Todeco, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Borrower.
1.02. SECTION 1.1 of the Loan Agreement is further amended by adding
the following definitions, to be inserted in SECTION 1.1 in alphabetical order:
"Valley-Todeco Guaranty" shall mean that certain Guaranty and Security
Agreement dated October 30, 1995 executed by Valley-Todeco in favor of the
Agent, guarantying the Obligations and granting to the Agent a security
interest in all of Valley-Todeco's personal property.
"Valley-Todeco Loan Agreement shall mean that certain Loan Agreement
dated as of October 30, 1995 between Borrower, as lender, and
Valley-Todeco, as borrower, establishing a loan facility in an amount not
to exceed $4,000,000.
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"Valley-Todeco Loan Agreement Assignment" shall mean that certain
Assignment dated as of October 30, 1955, executed by Borrower and
acknowledged by Valley Todeco, assigning to the Agent, for the benefit of
the Lenders, all of Borrower's rights under the Valley-Todeco Loan
Agreement.
"Valley-Todeco Mortgage" shall mean that certain deed of trust
executed by Valley-Todeco in favor of the Agent, covering the real estate
owned by Valley-Todeco.
"Valley-Todeco Pledge Agreement" shall mean that certain Pledge
Agreement dated October 30, 1995 executed by Borrower in favor of the
Agent, pledging to the Agent all of the stock of Valley-Todeco.
1.03. SECTION 1.1 of the Loan Agreement is further amended by adding
the following after "the Letter of Credit Agreement," in the definition of
"Loan Documents":
"the Valley-Todeco Loan Agreement, the Valley-Todeco Loan Agreement
Assignment, the Valley-Todeco Guaranty and Security Agreement, the
Valley-Todeco Mortgage, the Valley-Todeco Pledge Agreement,"
1.04. SECTION 8.1 of the Loan Agreement is amended by adding "(other
than Valley-Todeco)" after the words "FORM ANY SUBSIDIARY" APPEARING IN SUCH
SECTION.
1.05. SECTION 8.2(h) of the Loan Agreement is amended by striking
"and "l prior to clause (iii) thereof, and adding the following immediately
preceding the period at the end of Section 8.2:
"; and (iv) loans to Valley-Todeco pursuant to the Valley-Todeco Loan
Agreement, in an amount not to exceed $4,000,000 at any time
outstanding, provided that any such loans are assigned to the Agent
pursuant to the Valley-Todeco Loan Agreement Assignment"
1.06. SECTION 8.03(A) of the Loan Agreement is amended by striking
"and "prior to clause (viii) thereof and adding the following immediately
preceding the period at the end of SECTION 8.3:
"; and (ix) Indebtedness of Valley-Todeco to the Borrower under the
Valley-Todeco Loan Agreement"
1.07. SECTION 8.10 of the Loan Agreement is amended by deleting the
second paragraph thereof and substituting the following therefor:
"Notwithstanding the foregoing, and without being subject to the
limitations on the dispositions of assets set forth in the preceding paragraph,
Borrower shall be permitted to contribute the assets of its Valley-Todeco
division to valley-Todeco, and to sell all of the stock of Valley-Todeco for a
commercially reasonable price, as determined by the Board of Directors of
Borrower, provided that a portion of such price in an amount not less than
$900,000 less than the book value of Valley-Todeco be in cash, 90% of such cash
purchase price to be paid at the closing of such sale. The proceeds of any such
sale shall be used by Borrower as prescribed in SECTION 2.3C."
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SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective upon the first Business Day upon which all of the following
conditions shall be satisfied:
(i) the Agent shall have received four (4) copies of this Amendment
duly executed by the Borrower, the Lender and the Agent;
(ii) the Agent shall have received Reaffirmations of Guaranty and
Security Agreement in substantially the form of Exhibit _A attached hereto,
duly executed by each of ▇▇▇▇▇▇ Chimes and Youngstown Steel Door;
(iii) the Borrower and Valley-Todeco shall have executed and delivered
the Valley-Todeco Loan Agreement and the Valley-Todeco loan Agreement
Assignment and delivered executed copies thereof to the Agent;
(iv) Valley-Todeco shall have executed and delivered to the Agent, in
form and substance satisfactory to the Agent, the valley-Todeco Guaranty and
Security Agreement
(v) Valley-Todeco shall have executed and delivered to the Agent such
UCC-1 financing statements as the Agent may request in order to perfect the
security Interests granted by the security agreement described in clause (iv)
above;
(vi) Valley-Todeco shall have executed and delivered to the Agent, in
form and substance satisfactory to the Agent, the Valley-Todeco Mortgage; and
(vii) The Borrower shall have executed and delivered to the Agent, in
form and substance satisfactory to the Agent, the valley-Todeco Pledge
Agreement, together with stock certificates representing all issued and
outstanding stock of Valley-Todeco and signed but undated stock powers endorsed
in blank covering such certificates.
SECTION 3 COVENANTS REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
3.1 Upon the effectiveness of this Amendment, the Borrower hereby
reaffirms all covenants, representations and warranties made by it in the Loan
Agreement to the extent the same are not amended hereby and agrees that all
such covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
3 2 The Borrower hereby represents and warrants that this
Amendment constitutes the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors ~ rights
generally and general principles of equity which may limit the availability of
equitable remedies.
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SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN AGREEMENT.
4.1 Upon the effectiveness of this Amendment, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein,"
"hereby" or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby, and each reference to the Loan Agreement in any
other document, instrument or agreement executed and/or delivered in connection
with the Loan Agreement shall mean and be a reference to the Loan Agreement as
amended hereby.
4.2 Except as specifically amended hereby, the Loan Agreement and
other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Lender or
the Agent under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision contained therein, except as specifically
set forth herein.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS
OF LAW PROVISIONS) AND DECISION OF THE STATE OF ILLINOIS.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment 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 to be an original and a11 of which taken together shall constitute but
one and the same instrument.
SECTION 7. HEADINGS. Section headings in this Amendment
are included herein for convenience or reference only and shall not constitute
a part of this Amendment for any other purpose.
IN WITNESS WHEREOF, the parties hereto hare caused this Amendment to
be executed by their respective officers thereto duly authorized as of the date
first written above.
THE ▇▇▇▇▇▇ AND SESSIONS CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Agent and as the sole Lender
By: /s/s ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President