EXHIBIT 4(d)
AGREEMENT AND AMENDMENT NO. 2
TO AN EXISTING REVOLVING
CREDIT FACILITY AGREEMENT
THIS AGREEMENT AND AMENDMENT NO. 2 TO AN EXISTING REVOLVING CREDIT FACILITY
AGREEMENT is made December , 1995, by and between MANUFACTURERS AND TRADERS
TRUST COMPANY ("Bank"), a domestic corporation with an office and principal
place of business located at Xxx X&X Xxxxx, Xxxxxxx, Xxx Xxxx 00000, and
TRANSMATION, INC. ("Borrower"), an Ohio corporation authorized to do business in
New York State, with an office and principal place of business located at 000
Xx. Xxxx Xxxx., Xxxxxxxxx, Xxx Xxxx 00000.
R E C I T A L S
A. On or about September 13, 1994, Bank and Borrower entered into a
Revolving Credit Facility Agreement.
B. In connection with its execution of the Revolving Credit Facility
Agreement, Borrower and other Entities also executed and delivered to Bank
various Documents.
C. The Revolving Credit Facility Agreement was amended pursuant to an
Amendment No. 1 to an Existing Facility Agreement, entered into by Borrower and
Bank on or about September 8, 1995 ("Amendment").
D. Bank and Borrower desire to make certain additional changes to the
Revolving Credit Facility Agreement as amended by the Amendment, which changes
are set forth below.
NOW, THEREFORE, in consideration of the promises set forth below, and/or in
consideration of any prior extension of credit by Bank to Borrower and/or in
consideration of Bank entering into the Agreement, Bank and Borrower hereby
agree as follows:
1. This Agreement and Amendment No. 2 to an Existing Revolving Credit
Facility Agreement is referred to below as the "Amendment No. 2". Except as
otherwise specified in this Amendment No. 2, capitalized terms used in this
Amendment No. 2 and in the Documents executed in connection with this Amendment
No. 2, have the definition given to them in the September 13, 1994 Revolving
Credit Facility Agreement between Bank and Borrower, as amended by the Amendment
and by this Amendment No. 2 and as hereafter amended from time to time
("Agreement").
2. Effective as the date this Amendment No. 2 is executed by Bank and
Borrower ("Amendment 2 Date"), Section 1.19 of the Agreement is deleted and
replaced with the following:
1.19 The term "Note" shall mean the $7,000,000.00 Grid Note executed by
Borrower on the Amendment 2 Date pursuant to Section 2 of the Agreement, as
extended, supplemented, modified, amended or replaced from time to time.
3. Effective as of the Amendment 2 Date, the following are added as
Sections 1.29, 1.30, 1.31, 1.32, 1.33, 1.34 and 1.35 of the Agreement:
"1.29 The term "Amendment No. 2" shall mean an Agreement and Amendment No.
2 to an Existing Revolving Credit Facility Agreement entered into by Bank and
Borrower on the Amendment 2 Date.
1.30 The term "Amendment 2 Date" shall mean the date Amendment No. 2 is
executed by Bank and Borrower.
1.31 "Eurocurrency Reserve Rate" means, for any LIBOR Loan for any Interest
Period therefor, the daily average of the stated maximum rate (expressed as a
decimal) at which reserves (including any marginal, supplemental, or emergency
reserves) are required to be maintained by Bank during such Interest Period (or
any part thereof) under Regulation D issued by the Federal Reserve ("Regulation
D"), against "Eurocurrency liabilities" (as such term is used in Regulation D),
but without the benefit or credit of proration, exemptions, or offsets that
might otherwise be available to Bank from time to time under Regulation D.
Without limiting the effect of the foregoing, the Eurocurrency Reserve Rate
shall reflect any other reserves required to be maintained by Bank against any
category of liabilities that includes deposits by reference to which the LIBOR
Base Rate for LIBOR Loans is determined, or any category of extension or credit
or other assets that include LIBOR Loans.
1.32 "Increased Cost" means any additional amounts sufficient to compensate
Bank for any increased cost of funding or maintaining a LIBOR Loan as a result
of any law (other than changes in tax laws imposed on the overall net income or
similar measures of profitability of Bank) or guideline adopted pursuant to or
arising out of the July, 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Conversions of
Capital Measurement and Capital Standards", or the adoption after the date of
this Agreement of any law or guideline regarding capital adequacy, or any change
in any of the foregoing or in the interpretation or the administration of any of
the foregoing by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by Bank
or Bank's holding company, if any, with any request or direction regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, which has or would have the effect of
reducing the rate of return of Bank's capital or the capital of Bank's holding
company, if any, as a direct consequence of the
transactions contemplated by this Agreement and related documents and
agreements, the existence of Bank's commitment to provide LIBOR Loans to a level
below that which Bank or Bank's holding company, if any, would have achieved but
for such adoption, change or compliance (taking into consideration Bank's
policies on capital adequacy).
1.33 "Interest Period" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the
immediately preceding Interest Period for a LIBOR Loan which Borrower chooses to
renew as a LIBOR Loan, and thirty, sixty or ninety days thereafter as the
Borrower may select as provided in Section 2.1.6. Notwithstanding the foregoing,
(i) if any Interest Period would otherwise end after the Revolver Expiration
Date, such Interest Period shall end on the Revolver Expiration Date; (ii) each
Interest Period that would otherwise end on a day which is not a Business Day,
shall end on the next succeeding Business Day; and (iii) notwithstanding clauses
(i), or (ii) above, no Interest Period shall have a duration of less than thirty
days without Bank's consent and, if the Interest Period for any LIBOR Loan would
otherwise be a shorter period, such loan shall not be available hereunder for
such period.
1.34 "LIBOR Base Rate" means, with respect to any Interest Period for a
LIBOR Loan, the rate per annum equal to the quotient obtained by dividing (and
rounded upward to the nearest 1/100 of 1%) (i) LIBOR (as determined below) on a
date two Business Days (or less, if acceptable to Bank), prior to the beginning
of an Interest Period ("Interest Setting Date"), at which deposits in United
States Dollars for a period and in an amount, comparable to the Interest Period
and the principal amount of the LIBOR Loan are offered to prime banks in the
London Interbank market at 11:00 a.m. (London time) on that day ("Reference
Bank") by (ii) a percentage equal to 100% minus the Eurocurrency Reserve Rate.
LIBOR shall be determined by the Bank on the Interest Setting Date from Telerate
Page 3750 as of 11:00 a.m. (London time) on such date, or if such page or such
service ceases to display such information, from such other service or method as
Bank may select. The LIBOR Base Rate shall be further adjusted on the first day
of each Interest Period to reflect any Increased Cost.
1.35 "LIBOR Loan" means a loan made by Bank under the Revolver which
accrues interest for the selected Interest Period at the LIBOR Base Rate plus
2.5%.
1.36 "LIBOR Rate" means, for the selected Interest Period, the LIBOR Base
Rate plus 2.5% per annum.
4. Effective as of the Amendment 2 Date, Section 2.1 of the Agreement is
deleted and replaced with the following:
"2.1 $7,000,000.00 Revolver
2.1.1 Effective as of the Amendment 2 Date, Bank hereby establishes for
Borrower a Revolver, the unpaid principal balance of which shall not at any time
exceed the Maximum Credit. This Revolver replaces and supersedes the
$7,000,000.00 Revolver previously provided to Borrower by Bank in the Amendment.
Within such limit, Borrower may borrow, repay and reborrow, for working capital
purposes only, on and after the Amendment 2 Date through the Revolver Expiration
Date, provided that the following conditions are met at the time of each
borrowing request:
2.1.1.1 Borrower is not in default under this Agreement, and no condition
exists, which, with notice, lapse of time or both, would constitute a default
under this Agreement.
2.1.1.2 All representations and warranties contained in Section 4 of this
Agreement and elsewhere in the Agreement and/or in any Document are true and
correct as of the date of the requested borrowing.
2.1.2 Unless sooner accelerated, all loans made under this Revolver shall
be repayable on the Revolver Expiration Date, pursuant to the terms of
Borrower's Note, which shall be in the form of Exhibit A to Amendment No. 2,
with blanks appropriately completed.
2.1.3 Each borrowing under this Revolver shall be processed by debiting
this Revolver and crediting Borrower's checking account with Bank for the amount
of the borrowing or otherwise making the loan proceeds available to Borrower.
The loan shall be deemed made immediately upon the crediting of the loan
proceeds to Borrower's checking account with Bank or by Bank otherwise making
the loan proceeds available to Borrower. Each loan, together with the unpaid
principal balance of all previous loans made under this Revolver, shall be
deemed automatically refinanced and consolidated into one loan, which shall be
payable to Bank as indicated in the Note.
2.1.4 So long as Bank receives notice of a proposed borrowing by 1:00 p.m.
on a Business Day, and the conditions precedent set forth in Sections 2.1.1.1
and 2.1.1.2 are satisfied, Bank will make advances duly authorized and permitted
under this Revolver available to Borrower by crediting Borrower's checking
account maintained at Bank's main office on that date. If Bank receives notice
of a proposed borrowing after 1:00 p.m. on a Business Day, it will endeavor to
make the advance available on that date, but if Bank is unable to do so, Bank
will make the advance to Borrower by crediting Borrower's checking account
maintained at Bank's office no later than 10:00 a.m. of the next Business Day.
2.1.5 Except for LIBOR Loans made by Bank at Borrower's request under this
Revolver, which shall accrue interest as specified in Section 2.1.6 below, the
unpaid principal balance of the Note, shall at all times prior to acceleration,
accrue interest, computed on the basis of a 360 day year for the actual number
of days elapsed, at the floating rate of Bank's Prime Rate per annum. If any
payment due under the Note is not made within five days of the date when due,
Borrower shall pay a late charge equal to the greater of 5% of the delinquent
amount or $50.00, or Bank's then current late charge. In the event Bank
accelerates payment of the Note, interest shall accrue on the unpaid principal
balance of the Note (including the then unpaid principal balance of all LIBOR
Loans), at the floating rate of Bank's Prime Rate plus 5.0% per annum, computed
on the basis of a 360 day year for the actual number of days elapsed, until the
Note is paid in full. In the event there is a change in Bank's Prime Rate, the
change in the accruing interest rate on the unpaid principal balance of the
Note, which is not accruing interest at a LIBOR Rate shall be effective on the
day when the change in Bank's Prime Rate is made by Bank, without notice to
Borrower. Payments of all accrued interest on the Note (whether such interest is
accruing at Bank's Prime Rate or at a LIBOR Rate), shall be due and payable on
the first Business Day of each month, commencing January 2, 1996, and when Bank
has accelerated payment of the Note, and on the Revolver Expiration Date, and
when the Note is paid in full.
2.1.6. So long as the conditions precedent set forth in Sections 2.1.1.1
and 2.1.1.2 are satisfied at the time of the request, Borrower may on two
Business Days'(or less notice, at Bank's sole option), prior written notice to
Bank, request that an advance under the Revolver accrue interest at the
applicable LIBOR Rate for a designated Interest Period or Borrower may convert
all or a portion of the unpaid principal balance of the Note which is then
accruing interest at the floating rate of Bank's Prime Rate, to a LIBOR Loan for
the selected Interest Period, or Borrower may renew a LIBOR Loan at the end of
an Interest Period at a LIBOR Rate determined by Bank for an additional
designated Interest Period. The written notice from Borrower shall specify the
requested amount of the LIBOR Loan plus the requested Interest Period. Once
Borrower requests a LIBOR Loan, the request shall be irrevocable. Upon receipt
of the written request, Bank shall determine the LIBOR Base Rate for the
designated Interest Period. After Bank determines the LIBOR Base Rate, Bank
shall notify Borrower of the LIBOR Rate for the requested LIBOR Loan, which
LIBOR Rate shall be the LIBOR Base Rate determined by Bank, plus 2.5% per annum.
All loans made under the Revolver shall accrue interest on the basis of a 360
day year for the actual number of days elapsed, regardless of whether the loan
is accruing interest at Bank's Prime Rate or at a LIBOR Rate.
At the end of an Interest Period, unless Borrower has timely requested in
writing to renew the LIBOR Loan at a new LIBOR
Rate for an additional specified Interest Period, the LIBOR Loan shall
thereafter automatically accrue interest at the floating rate of Bank's Prime
Rate per annum. Principal on LIBOR Loans may not be prepaid in whole or in part
prior to the end of an Interest Period without the prior written consent of
Bank. Bank may, at its sole option, refuse to allow such prepayment or allow
such prepayment upon payment to Bank of a prepayment premium satisfactory to
Bank.
2.1.7. In the event that the unpaid principal balance of the Note at any
time exceeds the Maximum Credit for any reason, including but not limited to a
change in the Borrowing Base and/or a decrease in the value of Eligible Accounts
Receivable and/or Eligible Inventory, then Borrower shall, without notice,
demand or protest, pay to Bank within ten days of the date the unpaid principal
balance of the Note exceeds the Maximum Credit, a sum sufficient to reduce the
principal balance of the Note to an amount equal to or less than the Maximum
Credit. Any unpaid principal balance of the Note which is in excess of the
Maximum Credit shall, until such excess is paid in full, or until Bank
accelerates payment of the Note, accrue interest at the floating rate of Bank's
Prime Rate plus 3% per annum, calculated on the basis of a 360 day year for the
actual number of days elapsed.
2.1.8 Bank is authorized to act on the telephone requests for borrowing
and/or prepayment, of any person identifying himself as an Authorized Person and
Borrower will be bound by such instructions. Borrower hereby indemnifies and
holds Bank harmless from any liability (including Bank's reasonable attorneys'
fees), which may arise as a result of Bank's good faith reliance on telephone
requests for borrowing and/or prepayment from any person identifying himself as
an Authorized Person.
2.1.9 Borrower shall pay to Bank a commitment fee equal to 1/4 of 1% per
annum (calculated on the basis of a 360 day year), on the daily average of the
difference between $7,000,000.00 (subject to permanent reduction, as specified
in Section 2.1.10 below), and the aggregate principal amount outstanding under
the Revolver. This commitment fee shall be payable in arrears and calculated by
Bank as of the first Business Day of each January (commencing January 2, 1996),
April, July and October, on the Revolver Expiration Date and when payment of the
Note is accelerated. The commitment fees shall be due and payable by Borrower
within ten days of the date that Bank bills Borrower for the commitment fee.
2.1.10 On five Business Days written notice to Bank, Borrower may elect to
reduce the number "$7,000,000.00" in the definition of Maximum Credit to a
lesser amount selected by Borrower. Upon such election, the reduction shall be
permanent and irrevocable, and if the then unpaid principal balance of the Note
exceeds the revised Maximum Credit, Borrower shall immediately pay
to Bank a sum sufficient to reduce the unpaid principal balance of the Note to
the new Maximum Credit."
5. Except as set forth above, all terms and conditions of the Agreement, as
amended by this Amendment No. 2, and the Documents remain the same.
6. Bank's obligation to enter into this Amendment is contingent upon the
execution of this Amendment No. 2 by Borrower, and the performance by Borrower
of all terms and conditions specified in this Amendment No. 2, and upon the
following additional terms and conditions.
a. Borrower shall deliver to Bank a Certificate executed by its
Secretary, containing the duly adopted resolutions of its directors, consenting
to the adoption of resolutions authorizing among other things, the execution by
Borrower of this Amendment, and all Documents to be executed by Borrower in
connection therewith. The Certificate shall be in the form of Exhibit "B", with
blanks appropriate completed.
b. Within thirty days of the Amendment 2 Date, all Guarantors shall
execute and deliver to Bank an Agreement and Acknowledgement pursuant to which
they acknowledge to Bank that all Documents executed by them in connection with
the Agreement, including but not limited to their respective Guaranties, remain
in full force and effect ("Acknowledgement"). The form of the Acknowledgements
shall be satisfactory to Bank and its attorneys.
c. All legal details in connection with this Amendment No. 2 and the
Documents executed in connection therewith, shall have met with the approval of
Bank and Xxxxx, Oviatt, Gilman, Xxxxxxx & Xxxxxx, counsel for Bank.
Bank, at is sole option, may extend past the Amendment 2 Date, the time
in which Borrower and/or any Guarantor and/or any other Entity is required to
provide any of the Documents required to be delivered under this Amendment No.
2. The extension may be written or oral, expressed or implied, such as where
Bank executes this Amendment No. 2 on the Amendment 2 Date without one or more
of the Documents required under this Amendment No. 2 having been provided. Such
extension shall not operate as a waiver of the requirement that such Documents
be provided, and Borrower's and/or Guarantors' and/or any other Entities'
failure to provide such Documents to Bank after the Amendment 2 Date, shall at
Bank's option, constitute a default under Section 6.1.4 of the Agreement. The
requirement that Borrower and/or any Guarantor and/or any other Entity deliver
to Bank any Documents called for under this Amendment No. 2 may only be waived
in a writing signed by Bank.
7. On the Amendment No. 2 Date, Borrower shall pay all of Bank's attorneys'
fees and disbursements incurred and to be incurred in connection with the
preparation, negotiation and execution of this Amendment No. 2, the Documents
executed in connection with this Amendment No. 2, and all related matters.
8. This Amendment No. 2 is governed by New York law, and may not be amended
or terminated orally. Any litigation involving this Amendment No. 2 and/or the
Agreement and/or any of the Documents shall at Bank's sole option, be triable
only in a court located in Monroe County, New York. BORROWER WAIVES THE RIGHT TO
A JURY TRIAL IN ANY LITIGATION OF ANY NATURE OR KIND IN WHICH BORROWER AND BANK
ARE PARTIES. No other Entity is a third party beneficiary of this jury trial
waiver. Borrower also waives the right to require Bank to post an undertaking in
any action commenced by Bank against Borrower, or in any action in which Bank
and Borrower are both parties, including but not limited to an action under
Article 71 of the CPLR.
IN WITNESS WHEREOF, Bank and Borrower have executed this Amendment No. 2 on
the date first written above.
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ J. XXXXXXXX XXXXX
-----------------------------------
J. Xxxxxxxx Xxxxx
Assistant Vice President
TRANSMATION, INC.
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxxxxx
President
STATE OF NEW YORK )
COUNTY OF MONROE )ss:
On this 19th day of December, 1995, before me personally came J. Xxxxxxxx
Xxxxx, to me known, who, being by me duly sworn, did depose and say that he is
an Assistant Vice President of MANUFACTURERS AND TRADERS TRUST COMPANY, the
corporation described in and which executed the above instrument; and that he
signed his name thereto by order of the board of directors of said corporation.
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Notary Public
STATE OF NEW YORK )
COUNTY OF MONROE )ss:
On this 15th day of December, 1995, before me personally came Xxxxxx X.
Xxxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is an Assistant Vice President of TRANSMATION, INC., the corporation
described in and which executed the above instrument; and that he signed his
name thereto by order of the board of directors of said corporation.
/s/ [illegible]
-----------------------------------
Notary Public
EXHIBIT A
Grid Note (omitted)
EXHIBIT B
Certificate of Secretary (omitted)
