EXHIBIT 4.6
BINKS XXXXX CORPORATION
WAIVER AND FIRST AMENDMENT TO THE
NOTE PURCHASE AGREEMENT
$15,000,000 7.14% SERIES A
SENIOR NOTES DUE DECEMBER 6, 2008
September 23, 1997
The Equitable Life Assurance
Society of the United States
c/o Alliance Corporate Finance
Group Incorporated
1345 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In response to the request of Binks Xxxxx Corporation (the "Company"),
The Equitable Life Assurance Society of the United States, the sole owner (the
"Majority Holder") of $15,000,000 aggregate principal amount of the 7.14% Series
A Senior Notes of the Company due December 6, 2008 (the "Notes") issued under
that certain Note Purchase Agreement dated as of November 30, 1993 (the
"Agreement"), pursuant to Section 15.2 of the Agreement, hereby:
(i) waives any Default or Event of Default under Section
12.1(c) of the Agreement that may have occurred as the result of a
violation of Section 10.1 or Section 10.2 during the period from the
Closing Date up to but not including the date hereof;
(ii) waives any Default resulting from the failure of the
Company to comply with Section 10.11 of the Agreement, as calculated on
August 31, 1997, and agrees that the first sentence of Section 10.11 of
the Agreement shall be hereby amended by deleting the following
language "(a) 1.30:1.00 from the Closing Date to November 30, 1995" and
replacing it with the following language "(a) 1.40:1.00 from September
1, 1997 to February 28, 1998";
(iii) agrees, in order to permit the Company to enter into that
certain Credit Agreement dated as of September 23, 1997, among the
Company, the Institutions from Time to Time Parties Thereto as Lenders
(the "Banks") and The First National Bank of Chicago as Agent
("Agent") (the "Credit Agreement"), (a) to waive Section 10.1(e) of
the Agreement solely for the purpose of permitting: (1) Xxxxx
Electrostatic, Inc. to enter into
a guaranty of indebtedness from time to time incurred under or pursuant
to the Credit Agreement and a guaranty of the indebtedness evidenced by
the Notes, in form and substance satisfactory to the Majority Holder
(the "Guaranty of the Notes"); and (2) any domestic Subsidiary (as
defined in the Credit Agreement) of the Company that is, at any time, a
Material Subsidiary (as defined in the Credit Agreement) to enter into
a guaranty of indebtedness from time to time incurred under or pursuant
to the Credit Agreement, provided the obligations under such guaranty
are governed by the terms of the Intercreditor Agreement; and (b) to
waive the requirements of Section 9.5 of the Agreement solely for the
purpose of permitting: (1) certain pledge agreements to be entered into
by the Company wherein the Company shall pledge to the Agent 65% of the
issued and outstanding capital stock of each of Xxxxx, X.X., a
corporation organized under the laws of France, and Binks Xxxxx
Limited, a corporation organized under the laws of the United Kingdom;
and (2) the Company to execute one or more pledge agreements or share
mortgages with respect to 65% of the shares of each Material Subsidiary
(as defined in the Credit Agreement), provided the pledge agreements or
share mortgages are governed by the terms of the Collateral Sharing
Agreement; and
(iv) waives any Default or Event of Default resulting from the
failure of the Company to comply with Section 4.18(i) of the Agreement
by virtue of the Company having provided certain retired employees with
health insurance pursuant to Retirement Income Contracts, in the forms
attached hereto as Exhibits B and C.
The amendments and waivers set forth in clauses (i) through (iv) of the
first paragraph of this Waiver and First Amendment shall become effective at
such time as:
(i) the Majority Holder shall have indicated its written
consent to such amendments and waivers by executing and delivering a
counterpart of this Waiver and First Amendment to the Company;
(ii) the Agent, the Banks and the Company shall have executed
and delivered a counterpart of a Collateral Sharing Agreement, dated
the date hereof, in form and substance satisfactory to the Majority
Holder;
(iii) Xxxxx Electrostatic, Inc. shall have executed and
delivered the Guaranty of the Notes;
(iv) the Agent, the Company and Xxxxx Electrostatic, Inc.
shall have executed and delivered a counterpart of an Intercreditor
Agreement, dated the date hereof, in form and substance satisfactory to
the Majority Holder; and
(v) the Company shall have paid the Majority Holder a fee in
the amount of $22,500, by wire transfer of immediately available funds
to the Majority Holder's account specified for receipt of payments in
respect of the Notes pursuant to the Agreement.
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The Company agrees to pay the statement for reasonable fees and
disbursements of the Majority Holder's special counsel presented to the Company
in connection with this Waiver and First Amendment.
The Company hereby represents that Exhibit A hereto sets forth a
correct and complete list and brief description of all Funded Debt of the
Company (including the Notes) and its Subsidiaries and all consensual Liens
securing such Debt as of the date hereof, after giving effect to the execution
and delivery of this Waiver and First Amendment and the agreements and documents
referred to herein as being executed and delivered in connection herewith.
The Majority Holder hereby represents that (i) it is the sole owner of
the Notes issued under the Agreement, (ii) the Equitable Variable Life Insurance
Company ("Equitable Variable") is no longer in existence and (iii) Equitable
Variable is not a necessary party to the effectiveness of this Waiver and First
Amendment.
This Waiver and First Amendment shall be deemed to be entered into
simultaneously with, and shall be deemed for all purposes to be effective as of
the date of, the Credit Agreement.
The Agreement, as amended hereby, shall continue in full force and
effect. All capitalized terms used herein, unless otherwise defined herein,
shall have the same meanings assigned to them in the Agreement.
Except as expressly amended hereby, the Agreement shall continue in
full force and effect in accordance with the provisions thereof. Except as
expressly provided herein, this Waiver and First Amendment shall not be deemed
(a) to be a waiver of, or consent to, or a modification or amendment of, any
other term or condition of the Agreement or (b) to prejudice any right or rights
which the holders of the Notes may have in the future under or in connection
with the Agreement or the Notes.
This Waiver and First Amendment shall be construed in accordance with
and shall be governed by the internal laws of the State of New York.
This Waiver and First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
First Amendment to be executed by their duly authorized representatives, all as
of the day and year first above written.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:___________________________________
Name:_________________________________
Title:________________________________
BINKS XXXXX CORPORATION
By:/s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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This Agreement, as amended hereby, shall continue in full
force and effect. All capitalized terms used herein, unless otherwise
defined herein, shall have the same meanings assigned to them in the
Agreement.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:/s/ XXXX XXXXXXXXXXX
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Name: Xxxx Xxxxxxxxxxx
Title: Investment Officer
