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Exhibit 10(y)
Execution Copy
AMENDMENT NO. 5
Dated as of March 5, 1997
THIS AMENDMENT NO. 5 ("Amendment") is entered into as of March
5, 1997 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.
B. The Borrower, the Lender and the Agent 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. AMENDMENTS TO THE LOAN AGREEMENT
Effective as of the date hereof, subject to the satisfaction
of the conditions precedent set forth in SECTION 2 below, the Loan Agreement is
hereby amended as follows:
1.01. SECTION 7.3(D) of the Loan Agreement is amended by
deleting the table set forth therein and substituting the following therefor:
FISCAL QUARTER ENDING NEAREST RATIO
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March 31, 1997 1.5 to 1.0
June 30, 1997 and each 2.75 to 1.0
Fiscal Quarter thereafter
1.02. SECTION 7.3(E) of the Loan Agreement is amended by
deleting the table set forth therein and substituting the following therefor:
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FISCAL QUARTER ENDING NEAREST RATIO
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March 31, 1997 0.6 to 1.0
June 30, 1997 and each 1.0 to 1.0
Fiscal Quarter thereafter
1.03. SECTION 7.3(F) of the Loan Agreement is amended by
deleting the table set forth therein and substituting the following therefor:
FISCAL QUARTER ENDING NEAREST AMOUNT
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March 31, 1997 $ 2,500,000
June 30, 1997 $ 8,500,000
September 30, 1997 $16,500,000
December 31, 1997 $21,000,000
December 31, 1998 and $25,000,000
the last day of each
Fiscal Year thereafter
1.04. SECTION 8.9 of the Loan Agreement is amended by
deleting the table set forth therein and substituting the following therefor:
FISCAL YEAR MAXIMUM CAPITAL EXPENDITURES
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1997 $18,000,000
1998 and each Fiscal $15,000,000
Year thereafter
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective and be deemed effective as of the date first above written upon the
Agent's having received the following:
(i) four (4) copies of this Amendment duly executed by the
Borrower, the Lender and the Agent;
(ii) Reaffirmation of Guaranty and Security Agreement in
substantially the form of EXHIBIT A attached hereto, duly executed by
▇▇▇▇▇▇ Chimes Co.; and
(iii) Reaffirmation of Guaranty and Security Agreement in
substantially the form of EXHIBIT B
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attached hereto, duly executed by Dimango Products Corporation.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
3.1 Except to the extent that any representation or warranty
expressly is made only with respect to an earlier date, 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 re-made 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.
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
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AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
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(AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) AND DECISIONS 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 all 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 have 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: Vice President and
Controller
GENERAL ELECTRIC CAPITAL
CORPORATION, as the Agent
and as the sole Lender
By:/S/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized Signer
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EXHIBIT A
to
Amendment
Form of Reaffirmation of Guaranty and
SECURITY AGREEMENT FOR ▇▇▇▇▇▇ CHIMES CO.
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(Attached.)
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REAFFIRMATION OF GUARANTY AND SECURITY AGREEMENT
The undersigned hereby (i) acknowledges receipt of that
certain Amendment No. 5 of even date herewith (the "Amendment") to the Loan
Agreement dated as of February 13, 1992, as amended and restated as of July 14,
1995 (as amended from time to time prior to the date hereof, the "Loan
Agreement") among THE ▇▇▇▇▇▇ & SESSIONS CO. (the "Borrower"), GENERAL ELECTRIC
CAPITAL CORPORATION ("GE Capital"), as a "Lender" (as defined in the Loan
Agreement) and GE Capital, as agent for the Lenders (in such capacity, the
"Agent"), (ii) reaffirms all of its obligations under that certain Guaranty and
Security Agreement dated as of February 13, 1992, as amended from time to time,
("Guaranty and Security Agreement"), made by the undersigned in favor of the
Lenders, and (iii) acknowledges and agrees that such Guaranty and Security
Agreement remains in full force and effect notwithstanding the Amendment, and
that such Guaranty and Security Agreement is hereby ratified and confirmed.
Date: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇ CHIMES CO.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Controller
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EXHIBIT B
to
Amendment
Form of Reaffirmation of Guaranty
AND SECURITY AGREEMENT FOR DIMANGO PRODUCTS CORPORATION
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(Attached.)
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REAFFIRMATION OF GUARANTY AND SECURITY AGREEMENT
The undersigned hereby (i) acknowledges receipt of that
certain Amendment No. 5 of even date herewith (the "Amendment") to the Loan
Agreement dated as of February 13, 1992, as amended and restated as of July 14,
1995 (as amended from time to time prior to the date hereof, the "Loan
Agreement") among THE ▇▇▇▇▇▇ & SESSIONS CO. (the "Borrower"), GENERAL ELECTRIC
CAPITAL CORPORATION ("GE Capital"), as a "Lender" (as defined in the Loan
Agreement) and GE Capital, as agent for the Lenders (in such capacity, the
"Agent"), (ii) reaffirms all of its obligations under that certain Guaranty and
Security Agreement dated as of October 25, 1996, as amended from time to time,
("Guaranty and Security Agreement"), made by the undersigned in favor of the
Lenders, and (iii) acknowledges and agrees that such Guaranty and Security
Agreement remains in full force and effect notwithstanding the Amendment, and
that such Guaranty and Security Agreement is hereby ratified and confirmed.
Date: March 5, 1997
DIMANGO PRODUCTS CORPORATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Treasurer
