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Exhibit 4(h)
EXECUTION COPY
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FIFTH AMENDMENT TO CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement dated as of March 3,
1997 (this "Amendment"), is entered into among Insilco Corporation, a Delaware
corporation (with its successors and permitted assigns, the "Borrower"), the
financial institutions from time to time party thereto as lenders (the
"Lenders"), the financial institutions from time to time party thereto as
issuing banks (the "Issuing Banks"), Citicorp USA, Inc. ("Citicorp") and Xxxxxxx
Xxxxx Credit Partners L.P. (formerly Pearl Street, L.P.), in their separate
capacities as Co-Agents for the Lenders and the Issuing Banks (the "Co-Agents")
and Citicorp, in its separate capacity as administrative and collateral agent
for the Lenders and the Issuing Banks (with its successors and permitted assigns
in such capacity, the "Administrative Agent"), and amends the Credit Agreement
dated as of October 21, 1994, as amended by the First Amendment to Credit
Agreement dated as of November 21, 1994, the Second Amendment to Credit
Agreement dated as of March 8, 1995, the Third Amendment to Credit Agreement
dated as of July 18, 1995 and the Fourth Amendment to Credit Agreement dated as
of June 21, 1996 (as so amended as amended hereby and as the same may be further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") entered into among the Borrower, the Lenders, the Issuing Banks, the
Co-Agents and the Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement.
W I T N E S S E T H:
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WHEREAS, pursuant to a Consent dated as of February 4, 1997,
the Requisite Lenders consented to the sale by the Borrower and Rolodex
Corporation of substantially all the assets of the Borrower's Rolodex business
(the "Rolodex Sale") on the condition that, concurrently with the consummation
of the Sale, the Net Cash Proceeds arising from the consummation of such sale be
applied to the Obligations in accordance with Section 3.01(b) of the Credit
Agreement;
WHEREAS, the Borrower has requested the undersigned Lenders,
(i) to defer application of such Net Cash Proceeds arising from the Rolodex Sale
required to be applied to the Obligations pursuant to Section 3.01(b) of the
Credit Agreement immediately upon the consummation of such sale to a date no
later than December 30, 1997, (ii) to place such Net Cash Proceeds in one or
more investment accounts pledged to the Administrative Agent as security for the
Obligations and to invest such proceeds in cash and Cash Equivalents and (iii)
to amend certain financial covenants contained in Article X of the Credit
Agreement, in each
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case substantially along the lines set forth in that certain letter dated
February 20, 1997 from the Borrower to the Administrative Agent, a copy of which
is attached hereto as Exhibit A; and
WHEREAS, the parties hereto desire to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the above premises, the
Borrower, Lenders party hereto, the Issuing Banks, the Co-Agents and the
Administrative Agent agree as follows:
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT. The
Credit Agreement is, effective as determined pursuant to
Section 3 hereof, hereby amended as follows:
1.01 Section 6.01(g) of the Credit Agreement is amended by
adding the following immediately prior to the period at the end thereof:
and except the deposit of the Net Cash Proceeds arising from the sale
of the Borrower's Rolodex business into one or more investment accounts
as permitted pursuant to Section 2 of the Fifth Amendment to Credit
Agreement dated as of March 3, 1997 in anticipation of a potential
dividend to the shareholders of the Borrower (it being understood and
agreed that the payment of such dividend shall not be permitted unless
expressly permitted by the Requisite Lenders pursuant to SECTION 9.06)
1.02 Section 10.02 (Minimum Fixed Charge Coverage Ratio) of
the Credit Agreement is amended by replacing the existing ratios set forth
opposite the following fiscal periods set forth below with the following ratios
set forth opposite such periods:
First fiscal quarter of 1997 1.25 to 1
Second fiscal quarter of 1997 1.25 to 1
Third fiscal quarter of 1997 1.25 to 1
1.03 Section 10.03 (Minimum Interest Coverage Ratio) of the
Credit Agreement is amended by replacing the existing ratios set forth opposite
the following fiscal periods set forth below with the following ratios set forth
opposite such periods:
First fiscal quarter of 1997 3.75 to 1
Second fiscal quarter of 1997 3.75 to 1
Third fiscal quarter of 1997 3.75 to 1
1.04 Section 10.04 (Maximum Leverage Ratio) of the
Credit Agreement is amended by replacing the existing ratios set
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forth opposite the following fiscal periods set forth below with the following
ratios set forth opposite such periods:
First fiscal quarter of 1997 3.25 to 1
Second fiscal quarter of 1997 3.25 to 1
Third fiscal quarter of 1997 3.25 to 1
SECTION 2. CONSENT.
2.01 The Lenders hereby agree that, so long as no Event of
Default has occurred and is continuing on the date of the consummation of the
Rolodex Sale, the Borrower shall be entitled to defer application of the Net
Cash Proceeds arising from the Rolodex Sale required to be applied to the
Obligations pursuant to Section 3.01(b) of the Credit Agreement immediately upon
the consummation of such sale to a date no later than December 30, 1997;
PROVIDED, HOWEVER, such agreement shall be subject to the following conditions:
(i) All such Net Cash Proceeds (LESS an amount equal to the lesser of (A) 50% of
such Net Cash Proceeds and (B) the amount of Investments and Capital
Expenditures made by the Borrower or any of the Restricted Subsidiaries in their
respective businesses during the 180 day period following the consummation of
the Rolodex Sale) shall be applied to the Obligations in accordance with Section
3.01(b)(vii) of the Credit Agreement by no later than December 30, 1997, (ii)
prior to the application thereof to the Obligations, such Net Cash Proceeds
shall be held by the Administrative Agent in one or more investment accounts (it
being understood that such proceeds may be transferred to additional investment
accounts opened after the date of the consummation of the Rolodex Sale)
acceptable to the Administrative Agent (each an "Investment Account") pursuant
to an investment account agreement in respect of each such account to be entered
into between the Borrower, the Administrative Agent and the financial
institution (which shall be a Lender) where such account is located, in each
case in form and substance satisfactory to the Administrative Agent (each an
"Investment Account Agreement"), which agreements shall constitute Loan
Documents and shall, among other things, (x) provide the Administrative Agent
with a perfected first priority Lien on each Investment Account and all amounts
on deposit in such account and any investments made with amounts on deposit in
such account and (y) give the Administrative Agent the right, among other
things, upon the occurrence and during the continuance of an Event of Default,
to liquidate any outstanding investments made from amounts on deposit in each
Investment Account and to apply all such amounts and any other amounts on
deposit in such Investment Account immediately to the Obligations in accordance
with Section 3.02(b)(ii) of the Credit Agreement, (iii) amounts on deposit in
any Investment Account may, at the direction of the Borrower, be invested in
Cash Equivalents, but only to the extent that the Administrative Agent is able
to obtain or retain a first priority perfected Lien in such
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investments, and (iv) interest on, and other income received in respect of
investments made with, amounts on deposit in each Investment Account shall be
applied from time to time at the request of the Borrower to the Revolving Loans,
it being understood and agreed that the Administrative Agent shall only apply
such interest and other income to the Obligations to the extent such amount is
in excess of the original amount of Net Cash Proceeds deposited in such
Investment Account.
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT. This Amendment shall become effective as of the date hereof on the
date (the "Amendment Effective Date") when the following conditions precedent
have been satisfied (unless waived by the Requisite Lenders or unless the
deadline for delivery has been extended by the Administrative Agent):
3.01 (a) CERTAIN DOCUMENTS. The Administrative Agent shall
have received on or before the Amendment Effective Date all of the following,
all of which, except as otherwise specifically described below, shall be in form
and substance satisfactory to the Administrative Agent and in sufficient copies
for each of the Lenders:
(i) This Amendment executed by the Borrower and
each of Lenders;
(ii) An Investment Account Agreement in respect of each
Investment Account into which Net Cash Proceeds from the Rolodex Sale
are intended to be deposited initially, duly executed by the
Administrative Agent, the Borrower and the financial institution where
such Investment Account is located;
(iii) To the extent not covered to the satisfaction of the
Administrative Agent by an appropriate certificate previously delivered
to the Administrative Agent in connection with the Credit Agreement, a
certificate of the Secretary or Assistant Secretary of the Borrower
dated the Amendment Effective Date certifying (A) the names and true
signatures of the incumbent officers of the Borrower authorized to sign
this Amendment, each Investment Account Agreement and the other
documents to be executed in connection with this Amendment, (B) the
resolutions of the Borrower's Board of Directors approving and
authorizing the execution, delivery and performance of this Amendment,
each Investment Account Agreement and the other documents to be
executed in connection with this Amendment and (C) that there have been
no changes in the Certificate of Incorporation or By-Laws of the
Borrower since the Closing Date;
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(iv) Good Standing Certificates certified by the
Secretary of State of Delaware relating to the Borrower;
(v) A favorable opinion of Borrower's counsel as
to such matters as the Administrative Agent shall reasonably
request; and
(vi) Such additional documentation as the
Administrative Agent, the Co-Agents or the Requisite Lenders
may reasonably require.
3.02 Each of the representations and warranties made by the
Borrower or the Guarantors in or pursuant to the Credit Agreement, as amended by
this Amendment, and the other Loan Documents to which the Borrower or any of the
Guarantors is a party or by which the Borrower or any of the Guarantors is
bound, shall be true and correct in all material respects on and as of the
Amendment Effective Date (except any such representations and warranties stated
to be given as of a specific date other than the Amendment Effective Date).
3.03 All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Amendment shall be satisfactory in all respects in form and
substance to the Administrative Agent, the Co-Agents and the Requisite Lenders.
3.04 No Event of Default or Default shall have occurred and be
continuing on the Amendment Effective Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower
hereby represents and warrants to the Lenders that (a) as of the date hereof no
Event of Default or Default under the Credit Agreement shall have occurred and
be continuing and (b) all of the representations and warranties of the Borrower
contained in subsections 6.01(a) through (z) of the Credit Agreement and in any
other Loan Document (as defined under the Credit Agreement) continue to be true
and correct as of the date of execution hereof in all material respects, as
though made on and as of such date (unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct as of such earlier date).
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
5.01 Upon the effectiveness of this Amendment, on and after
the date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import, and each reference in the other
Loan Documents to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
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5.02 Except as specifically amended above, all of the terms of
the Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect.
5.03 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender, any Issuing Bank, either Co-Agents or
the Administrative Agent under the Credit Agreement or any of the Loan
Documents, nor constitute a waiver of any provision of the Credit Agreement or
any of the Loan Documents.
SECTION 6. COSTS AND EXPENSES. The Borrower agrees to pay on
demand in accordance with the terms of Section 13.02 of the Credit Agreement all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Amendment and all
other Loan Documents entered into in connection herewith, including the
reasonable fees and out-of-pocket expenses of Sidley & Austin, counsel for the
Administrative Agent with respect thereto.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
SECTION 8. GOVERNING LAW. This Amendment shall be
interpreted, and the rights and liabilities of the parties determined, in
accordance with the internal law of the State of New York.
IN WITNESS WHEREOF, this Amendment has been duly executed on
the date set forth above.
INSILCO CORPORATION
By:
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Title:
CITICORP USA, INC., as Administrative
Agent, Co-Agent and as a Lender
By:
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Title: Attorney-in-fact
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XXXXXXX XXXXX CREDIT PARTNERS L.P.
(formerly Pearl Street, L.P.), as Co-
Agent and as a Lender
By:
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Title:
BANK OF AMERICA ILLINOIS
By:
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Title:
BANQUE PARIBAS
By:
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Title:
By:
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Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
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Title:
ABN AMRO BANK N.V., PITTSBURGH BRANCH
By: ABN AMRO NORTH AMERICA, INC., as
Agent
By:
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Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
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Title:
THE FUJI BANK, LIMITED
By:
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Title:
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FIRST BANK NATIONAL ASSOCIATION
By:
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Title:
THE BANK OF NEW YORK
By:
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Title:
THE HUNTINGTON NATIONAL BANK
By:
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Title:
THE BANK OF NOVA SCOTIA
By:
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Title:
BANK OF SCOTLAND
By:
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Title:
NATIONAL CITY BANK, COLUMBUS
By:
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Title:
STAR BANK N.A.
By:
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Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By:
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Title:
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GIROCREDIT BANK A.G. DER SPARKASSAN
By:
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Title:
THE NIPPON CREDIT BANK, LTD., NEW YORK
BRANCH
By:
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Title:
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ACKNOWLEDGMENT
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Reference is hereby made to the Subsidiary Guaranty dated as
of November 21, 1994 (the "Subsidiary Guaranty"), to which each of the
undersigned is a party, in favor of the Administrative Agent, the Co-Agents, the
Lenders and the Issuing Banks. Each of the undersigned hereby consents to the
terms of the foregoing Fifth Amendment to Credit Agreement and agrees that the
terms thereof shall not affect in any way its obligations and liabilities under
the undersigned's Guaranty or any other Loan Document, all of which obligations
and liabilities shall remain in full force and effect and each of which is
hereby reaffirmed.
XXXXXX PUBLISHING COMPANY
By:
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Title:
ROLODEX CORPORATION
By:
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Title:
ROLODEX DE PUERTO RICO, INC.
By:
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Title:
SIGNAL TRANSFORMER CO., INC.
By:
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Title:
SIGNAL CARIBE, INC.
By:
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Title:
XXXXXXX CONNECTOR SYSTEMS, INC.
By:
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Title:
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XXXXXXX STAMPING CORPORATION
By:
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Title:
STEEL PARTS CORPORATION
By:
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Title:
GREAT LAKE, INC.
By:
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Title:
THERMAL COMPONENTS DIVISION, INC.
By:
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Title:
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