FIFTH AMENDMENT
TO
CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement (this "Fifth Amendment"),
dated as of November 20, 1998, is among Michigan National Bank, a national
banking association, and the other banking institutions listed on Exhibit
A attached hereto and who appear as signatories to this Fifth Amendment
(each a "Bank" and collectively the "Banks"), Michigan National Bank, as
agent ("Agent"), and ▇▇▇▇▇▇▇ Industries, Inc., a Delaware corporation
("Borrower").
Recitals
The Agent, the Borrower and some of the Banks executed a certain
Credit Agreement (the "Credit Agreement") dated as of June 1, 1994, as
amended, providing for, among other things, the establishment by the Banks
for the benefit of the Borrower of a line of credit in the amount of
$100,000,000. The Credit Agreement was amended by a First Amendment to
Credit Agreement, dated as of December 14, 1994, by a Second Amendment to
Credit Agreement, dated as of June 1, 1995, by a Third Amendment to Credit
Agreement, dated as of December 18, 1996, and by a Fourth Amendment to
Credit Agreement, dated as of December 31, 1997 (the Credit Agreement, as
so amended, the "Amended Credit Agreement").
The Borrower has now requested the Banks to consider certain
amendments to the Amended Credit Agreement, including a temporary increase
in the aggregate principal amount of the loans that can be outstanding
under the Amended Credit Agreement at any one time to $125,000,000.00, as
well as certain changes in the identity of the banks that are to be
parties to the Credit Agreement, and the Banks have consented to such
amendments as set forth herein upon the terms and conditions set forth
herein.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Amended Credit Agreement.
NOW, THEREFORE, the parties hereto agree that the Amended Credit
Agreement shall be amended, effective (unless otherwise specified herein)
on and as of November 20, 1998, as follows:
1. The definition of the term "Brass Guaranties" in Section 1, shall
be amended, effective as of December 27, 1997, by adding thereto,
immediately following the word "Ltd." in the parenthetical clause thereof,
the words "and any direct or indirect foreign subsidiaries of ▇▇▇▇▇▇▇
Brass Co. formed subsequent to December 27, 1997."
2. The definition of the term "Ratable Share" in Section 1, shall be
amended to read in its entirety, as follows:
"Ratable Share" means for each Bank the percentage shown on
Exhibit A of the Fifth Amendment, which as to aggregate
Advances of the Loan will be limited to the maximum U.S. dollar
amount shown on said Exhibit A."
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3. Section 2.1 shall be amended by inserting the following phrase
after the amount "$100,000,000" at the beginning of the sixth line
thereof: "provided, however that from November 20, 1998 to February 18,
1999, or such earlier date that the parties agree to one or more term
loans to replace the Line of Credit Loan (the "Increased Credit Period"),
such maximum aggregate principal amount shall be "$125,000,000."
4. Section 2.7 shall be amended by inserting the following phrase
after the term "$100,000,000" in the two places in which it appears: "or
$125,000,000 during the Increased Credit Period."
5. A new Section 3.7 is added to the Amended Credit Agreement,
reading as follows:
3.7.1 ▇▇▇▇▇▇▇▇ Industries Inc. Guaranty
At such time as the outstanding principal balance
outstanding on the Loan first exceeds $100,000,000.00, the
Borrower shall forthwith cause ▇▇▇▇▇▇▇▇ Industries, Inc. to
execute and deliver to the Agent for the prorate benefit of the
Banks an unlimited guaranty of all of the Obligations in form
and substance satisfactory to the Agent.
6. Contemporaneously with the execution of this Fifth Amendment, the
Borrower shall pay the Agent, for the prorate benefit of the Banks, an
additional fully-earned, non-refundable commitment fee of $25,000.
7. The terms and provisions of the Form of Request for Advance
attached to the Amended Credit Agreement as Exhibit 2.2.3, the Form of
Line of Credit Note attached to the Amended Credit Agreement as Exhibit
2.3 and the Form of Brass Guaranties attached to the Amended Credit
Agreement as Exhibit 3.5.1 shall be revised as necessary to conform to the
provisions of this Fifth Amendment. The Borrower shall execute new Notes
and shall cause the Brass Subsidiaries to execute new or amended Brass
Guaranties which conform to the provisions of this Fifth Amendment, such
execution (and delivery of such Notes and Brass Guaranties to the Agent)
being a condition to the effectiveness of this Fifth Amendment.
8. The parties acknowledge and agree that Boatmen's National Bank
("Boatmen's") has been merged into NationsBank, N.A. ("NationsBank") and,
accordingly, that NationsBank has assumed all of the rights and
corresponding obligations of Boatmen's under the Amended Credit Agreement
and the other Loan Documents and the Ratable Share previously held by
Boatmen's.
9. Except as herein provided, the Amended Credit Agreement shall
remain in full force and effect, including the provisions of Section 9
thereof which are herein incorporated by this reference.
l0. The Borrower hereby reaffirms the representations and warranties
set forth in Section 4 of the Amended Credit Agreement and certifies that
no Event of Default has occurred or is existing under the Amended Credit
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be executed and delivered as of the date first hereinabove
set forth.
"BORROWER"
▇▇▇▇▇▇▇ INDUSTRIES, INC.
WITNESS:
By:
Its: Executive Vice President
"BANKS"
MICHIGAN NATIONAL BANK
WITNESS:
By:
Its: Senior Relationship Manager
NATIONSBANK, N.A.
By:
Its:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Its:
MERCANTILE BANK NATIONAL
ASSOCIATION
By:
Its:
KEY BANK NATIONAL ASSOCIATION
(formerly known as Society National
Bank)
By:
Its:
"AGENT"
MICHIGAN NATIONAL BANK
By:
Its:
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EXHIBIT A
Ratable Maximum Amount During Maximum Amount
Name of Bank Share Increased Credit Period Other Times
------------ ------- ----------------------- --------------
Michigan National Bank 25% $31,250,000 $25,000,000
The First National 18.75% $23,437,500 $18,750,000
Bank of Chicago
NationsBank, N.A. 18.75% $23,437,500 $18,750,000
Key Bank National
Association 18.75% $23,437,500 $18,750,000
Mercantile Bank 18.75% $23,437,500 $18,750,000
National Association
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